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Filed 3/30/23 Scaccia v. Kennedy 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yolo)

----

BRIAN SCACCIA,

Plaintiff and Appellant,

v.

DANIEL KENNEDY et al.,

Defendants and Respondents.

C093627

(Super. Ct. No. CV-2014-

1820)

Plaintiff Brian Scaccia (Plaintiff) representing himself, appeals from (1) summary 

judgment granted in favor of defendants Daniel Kennedy, M.D. (Dr. Kennedy) and Sutter 

Davis Hospital (Sutter) (collectively Defendants), and (2) “all underlying rulings” in this 

case. Plaintiff’s claims against Defendants arise out of care and treatment they provided 

to his mother, Anne Ringkamp, who died at Sutter in November 2013 following a twoweek hospitalization. We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

An appellant’s opening brief must contain “a summary of the significant facts”

relevant to the issues raised in the appeal. (Cal. Rules of Court, rule 8.204(a)(2)(C).) A 

summary is particularly important in a case like this, where both the judgment and all 

underlying rulings are challenged on appeal, and where the record is over 20,000 pages. 

Without a complete and cohesive summary, we do not know what it is we are being 

asked to review. The entirety of Plaintiff’s summary of significant factsis as follows: 

“Decedent, an underweight functional 81-year-old senior 

moved to Davis in late-August 2013. The Sutter primary care 

physician (‘PCP’) placed Decedent in a Sutter-run grantcapped program (‘AIM’).

“Decedent suffered a stroke (09-27-2013). Treatment began 

upon admission to [Sutter] but withdrawn (for financial 

reasons, i.e., grant cap and discovery of prior malpractice) 

without consent on fraudulent cancer claims after Plaintiff 

left; Decedent returned suffering asthma (11-10-2013); 

Defendants entrapped, imprisoned, tortured, and asserted 

various fraudulent alibis (due to botched murderous attempts) 

before massively overdoing Decedent (~46-times the 

morphine equivalent of fentanyl used for the previous day’s 

unconsented operation, a month’s prescription of Ativan, etc.) 

when mimicking a MRSA respiratory infection.”

As just noted, the record is over 20,000 pages. It spans 28 volumes. The index 

alone is over 130 pages. With some help from Defendants’ briefing, we have attempted 

to briefly summarize what appear to be the most relevant facts, in order to give an 

overview of the proceedings in the trial court. Additional facts will be discussed in the 

relevant discussion sections, below. 

The Complaint

This case begins with the filing of the first amended complaint on January 9, 
3

2015.1 It contains 251 paragraphs of factual allegations, most of which have nothing to 

do with Dr. Kennedy or Sutter. Instead, most of the allegations deal solely with Plaintiff, 

his brother John, and their mother, Anne.

2

 According to those allegations, Anne lived in 

Ohio from 1997 to 2013. She lived next door to John, in a house she rented from him. 

The complaint contains a litany of accusations against John, including that he hated his 

mother, he tricked her into signing her penultimate will, he stole or converted large sums 

of money from her, and he extorted money from Plaintiff.

The complaint continues that at some point in time, Anne became unable to care 

for herself and was dependent on John to ensure she had food, housing, and medical care. 

By 2013, she was food deprived and weighed only 80 pounds. Her house was so dirty 

that healthcare workers refused to sit down when they visited her. John withheld 

medicine from her. Her health declined. She had chronic obstructive pulmonary disease. 

In July 2013, a social worker reported Anne’s situation to Ohio Adult Protective Services

because she believed Anne was not getting sufficient food, medical care, or assistance 

with activities of daily living.

In August 2013, Plaintiff moved Anne to California to live with him. The move 

was contentious. Plaintiff accused John of abusing Anne, and John accused Plaintiff of 

taking Anne against her will and of undue influence. Police were called more than once.

By early August 2013, Anne and Plaintiff were living in California. Anne 

suffered from health problems that Plaintiff suspected were caused by John’s abuse. He 

scheduled visits to doctors in hopes of reversing her decline.

On September 26, 2013, Plaintiff took Anne to the Sutter emergency room 

because she appeared to have suffered a stroke and was having difficulty breathing. A 

1

 The original complaint was filed on November 12, 2014, but was never served.

2

 We refer to John and Anne by their first names to avoid confusion, and mean no 

disrespect. 
4

scan of Anne’s lungs revealed a liver tumor. Dr. Kennedy, one of Anne’s treating 

physicians at Sutter, stated it was probably caused by metastatic cancer elsewhere in the 

body and that Anne was dying of cancer, but he refused to do tests to determine if she 

actually had cancer. Dr. Kennedy wanted to discontinue Anne’s appetite stimulant and 

would not take measures to help her gain weight because he believed that increased food 

consumption would feed the tumor and hasten her death. He stated her quality of life had 

deteriorated so much that it was not worth prolonging. Plaintiff disagreed and stated it 

was premature to treat Anne as if she had terminal cancer, and that her poor health was 

likely the result of her awful living conditions in Ohio. After Anne was discharged from 

the hospital, she told Plaintiff she wanted aggressive treatment.

On November 10, 2013, Anne returned to Sutter with severe respiratory distress. 

Within days, she had contracted an antibiotic-resistant infection, and was placed on a 

ventilator. Dr. Kennedy claimed Anne was in pain and he sought Plaintiff’s permission 

to remove Anne from the ventilator. Plaintiff refused. Plaintiff told Dr. Kennedy about 

John’s abuse and neglect of Anne. He also told Dr. Kennedy that Anne had an advanced 

health care directive (AHCD) naming him as her agent and instructing doctors not to 

contact John if she were seriously ill or dying. Dr. Kennedy did not attempt to obtain a 

copy of Anne’s AHCD and instead contacted John and let him make decisions about 

Anne’s care and treatment. John and Dr. Kennedy made plans to “euthanize” Anne. 

Anne began bleeding from her lungs, and a lab test suggested “foul play” because it 

found “plant matter” in her lungs. Plaintiff believes someone intentionally stuck a branch 

down Anne’s ventilator tube and put plant matter into her lungs “to wound her, perhaps 

mortally.” With John’s approval, the ventilator was removed on November 23, and Anne 

died that day.

After Anne’s death, John filed a lawsuit in Ohio claiming that he was Anne’s sole 

heir, and that Plaintiff had abused her, kidnapped her, stolen money from her, and caused 
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her tumor and her death. In April 2014, John “usurped Anne’s will and obtained a 

default judgment . . . against” Plaintiff.

Based on these allegations, Plaintiff sued John, Dr. Kennedy and Sutter, both on 

his own behalf and on behalf of Anne.

3 The complaint contains 22 causes of action,

seven of which are asserted against Dr. Kennedy and/or Sutter: (1) false light; (2) 

defamation; (3) fraud; (4) medical negligence; (5) wrongful death; (6) “decisions law”

(based on Defendants’ alleged failure to follow Anne’s wishes as stated in her AHCD);

and (7) breach of confidentiality.

4 As asserted on behalf of Anne, these causes of action

are survival causes of action (i.e., causes of action that existed while a person was alive 

and that survive the person’s death), which may only be commenced “by the decedent’s 

personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. 

Proc., § 377.30.)5 

Demurrers and Motion to Dismiss

On March 16, 2015, Sutter filed a demurrer to the complaint, arguing the cause of 

action for false light was uncertain, and the remaining causes of action failed to state facts 

sufficient to constitute a cause of action against it. Sutter also argued Plaintiff lacked 

standing to bring the survival causes of action because he did not allege he was Anne’s 

personal representative or successor in interest. Plaintiff responded by asking for a 

continuance in order to perfect his right to bring claims on Anne’s behalf and to conduct 

discovery to defend against the demurrer. The trial court denied Plaintiff’s request for a 

3

 He also sued an entity identified as “Sutter Medical Foundation,” which successfully 

demurred to the complaint. The trial court entered judgment in its favor, Plaintiff 

appealed, and we affirmed. (See Scaccia v. Sutter Medical Foundation (Dec. 3, 2018, 

C084799) [nonpub. opn.].) We thus do not discuss Sutter Medical Foundation further.

4

 The remaining causes of action are asserted against John only.

5

 Further undesignated statutory references are to the Code of Civil Procedure.
6

continuance. On April 29, 2015, the trial court overruled the demurrer as to the wrongful 

death cause of action, and sustained it with leave to amend as to all other causes of 

action, finding (1) the complaint failed to allege Plaintiff had been appointed as Anne’s 

personal representative, (2) the cause of action for false light failed to allege what 

information Sutter publicized that showed plaintiff(s) in a false light, and (3) the 

complaint failed to state facts sufficient to constitute the other causes of action. A 

subsequent order stated the amended complaint had to be filed by August 6, 2015.

In the meantime, on June 8, 2015, Dr. Kennedy filed a demurrer that largely 

repeated Sutter’s arguments. Once again, Plaintiff sought a continuance, and, once again, 

the trial court denied the request. On August 13, 2015, the trial court overruled the 

demurrer as to the wrongful death cause of action, and sustained it with leave to amend as 

to all other causes of action for the same reasons it gave when ruling on Sutter’s 

demurrer. The amendment had to be filed within 10 days. (Cal. Rules of Court, rule 

3.1320(g).) 

Plaintiff failed to file an amended complaint within the time allowed, and on 

October 9, 2015, Dr. Kennedy filed a motion to dismiss all claims but the wrongful death 

claim, and Sutter joined in that motion. The motion was based on section 581, which 

provides, “The court may dismiss the complaint as to [a] defendant when: [¶] . . . [¶] (2)

. . . after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails 

to amend it within the time allowed.” (§ 581, subd. (f)(2).) The trial court granted the 

motion on November 30, 2015, finding Plaintiff “has not shown good cause for failing to 

file an amended complaint.” Following this ruling, the only cause of action remaining 

against Dr. Kennedy and Sutter was for wrongful death.

The 2016 Summary Judgment Motions

In January 2016, Dr. Kennedy filed a motion for summary judgment on the ground 

that the undisputed facts showed his care and treatment of Anne complied with the 

standard of care. In April 2016, Sutter filed a similar motion. On November 18, 2016, 
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the trial court denied both motions because Defendants had included in their separate 

statements a fact that Plaintiff disputed—namely, that he consented to the removal of his 

mother’s ventilator.

The 2016 Motions to Amend

On June 29, 2016, while the summary judgment motions were pending, Plaintiff 

filed a motion for leave to amend. The court denied the motion on procedural grounds 

(failure to include the supporting declaration required by Cal. Rules of Court, rule 

3.1324).

On August 29, 2016, Plaintiff filed another motion for leave to amend, stating he 

wanted to “clarify” the allegations in the complaint, restore some of the previously 

dismissed claims, add a new claim for battery, add a new claim for conspiracy, and add a 

claim for punitive damages pursuant to section 425.13. On November 28, 2016, the court 

denied the motion with prejudice, noting: “1. On April 29, 2015, and August 13, 2015, 

this Court issued Orders sustaining both [Sutter’s] Demurrer and Dr. Kennedy[’s] 

Demurrer, both with leave to amend. [¶] 2. Notwithstanding the Court’s Orders, 

Plaintiff did not seek to file an Amended Complaint until over one year later, on 

September 16, 2016.[6] [¶] 3. Plaintiff was given over a year’s time to file an amended 

complaint. [¶] 4. In the absence of new facts or law, the Court finds that Plaintiff’s delay 

to file an amended complaint is inexcusable.”

On October 24, 2016, Plaintiff filed a motion for reconsideration of the order

denying him leave to amend. On December 14, 2016, the court denied the motion for 

6

 This date appears to be an error. As noted, Plaintiff filed a procedurally noncompliant 

motion on June 29, 2016, and a procedurally compliant one on August 29, 2016. 
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reconsideration because it was not based on new or different facts, circumstances or law. 

However, it did grant him leave to rename certain defendants.7

Request to Appoint an Expert

In July 2018, Plaintiff filed a motion asking the court to appoint an expert and an 

“attorney limited to expert testimony issues.” In support of the motion, he acknowledged 

he would need an expert in order to prove his case, but stated he could not afford to pay 

an expert and the experts he had contacted were only willing to work with attorneys. He 

cited Evidence Code sections 730 and 731, which provide the court may appoint an 

expert in certain circumstances, with the expert’s fees paid either by the court itself or by 

the parties in a proportion determined by the court. The court denied the motion, finding 

“no good cause for appointment of an expert.”8

Plaintiff filed a similar motion in July of 2020, after Defendants filed motions for 

summary judgment. He stated he had attempted to contact “dozens of experts,” but “[t]he 

majority do not even reply,” and those that do reply state “they will ‘gladly’ speak to an 

attorney [but] they will not speak to me.” He thus asked the court to appoint an expert 

and “a limited purpose attorney to work with” the expert. The court, once again, denied 

the motion, finding “there is no legal authority supporting plaintiff’s request for 

appointment of an expert . . . at the Court’s or defendants’ expense in a medical 

7

 On February 15, 2017, Plaintiff filed a petition for writ of mandate in this court 

challenging various orders of the trial court, including the orders sustaining the demurrer, 

granting the motion to dismiss, denying leave to amend, and denying the motion for 

reconsideration. We denied the petition. (Scaccia v. Superior Court (C084021, petn. 

den. Mar. 1, 2017).) 

8

 On January 7, 2019, Plaintiff filed a petition for writ of mandate challenging this order 

and raising various other contentions. We denied the petition. (Scaccia v. Superior 

Court (C088621, petn. den. Jan. 17, 2019).) 
9

malpractice action,” and “Plaintiff has not shown why he has failed to hire an attorney on 

a contingency basis since 2014.”

The 2020 Motions to Amend

On February 28, 2020, Plaintiff filed another motion to amend, seeking, once 

again, to add a claim for punitive damages, and also “dropp[ing] claims that are more or 

less unrelated to the central wrongful death claim,” including the claims for medical 

negligence, decisions law, and breach of confidentiality (which had originally been 

asserted against Dr. Kennedy and Sutter). He also sought to re-assert against Dr. 

Kennedy and Sutter the causes of action for false light, defamation, and fraud, and to 

assert against Sutter a cause of action for invasion of privacy (which had not previously 

been asserted against it).

On July 10, 2020, before the trial court ruled on the February 28 motion to amend, 

Plaintiff filed another motion to amend.

The trial court denied the first motion to amend on July 15, 2020, noting Plaintiff 

failed to explain why his request to amend was not made earlier, and finding the request 

was “way too late.” The trial court noted the complaint was filed on November 12, 2014, 

which was almost six years ago, and “this case is up against the 5 year dismissal statute 

of failure to prosecute.” It also noted it had dismissed with prejudice all claims against 

Dr. Kennedy and Sutter except the wrongful death claim in November 2015, and

allowing Plaintiff to either reallege those claims or allege new ones at such a late date 

would be prejudicial to Defendants. The court denied the second motion to amend for the 

same reasons.

The 2020 Motions for Summary Judgment

In the meantime, in early to mid-2020, Dr. Kennedy and Sutter filed motions for 

summary judgment or adjudication. Both Defendants argued the undisputed facts 

showed their care and treatment of Anne was not a substantial factor in causing her death. 

Defendants’ motions were supported by a declaration from an expert who opined that the 
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care rendered by Dr. Kennedy and the staff at Sutter was not a substantial factor in 

causing Anne’s death, and that Plaintiff proffered no expert declaration in opposition to

the motions.

The trial court issued a tentative ruling denying Dr. Kennedy’s motion, which was 

scheduled to be heard first, because it had previously denied his 2016 motion for 

summary judgment, and section 437c, subdivision (f)(2), provides, “A party shall not 

move for summary judgment based on issues asserted in a prior motion for summary 

adjudication and denied by the court unless that party establishes . . . newly discovered 

facts or circumstances or a change of law supporting the issues reasserted in the summary 

judgment motion.” At the hearing on the motion, the court vacated its tentative ruling 

and allowed the parties to file supplemental briefs addressing the applicability of this 

provision. The court ultimately ruled it was not precluded from hearing the second 

motion because it addressed causation, which was a new issue not previously ruled on or 

raised in the first motion.

On the merits, the court granted both motions, ruling as follows: “The elements of 

an action for wrongful death are (1) tort (negligence or other wrongful act), (2) the 

resulting death, and (3) the damages, consisting of the pecuniary loss by the heirs. 

(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 796.) . . . [Citation.] . . . 

[Citation.] Plaintiff must prove the defendant’s conduct was a substantial factor in 

causing the decedent’s death. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1497-1499.) 

Defendant has met his burden of showing that the cause of action for wrongful death has 

no merit because plaintiff cannot establish the element of causation. (UMF nos. 1-14). 

Whether the underlying tort is ‘medical malpractice,’ ‘fraud,’ ‘premeditated murder,’

‘willful intent,’ or ‘battery,’ plaintiff has failed to show defendant’s conduct was a 

substantial factor in causing plaintiff’s harm. (UMF nos. 1-14; PUMF nos. 15-96.)”

Judgment in favor of Dr. Kennedy was entered January 4, 2021, and judgment in 

favor of Sutter was entered on January 6, 2021. On February 16, 2021, Plaintiff appealed 
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both judgments and “all underlying rulings (including the denial of Pl.’s motion to amend 

(8-29-2016) and extend the discovery cutoff to allow rulings on motions to compel 

compliance with discovery orders, motions to compel further, and motions to compel).”9

DISCUSSION

Plaintiff’s opening brief is long and difficult to understand. The argument section 

contains 19 separate headings (and several subheadings). We have attempted to address 

all arguments/headings, and we generally discuss them in the order in which they appear

in the opening brief, although we have consolidated the arguments relating to summary 

judgment and discovery, and thus discuss them out of order.

I

Improper Treatment of Unrepresented Party 

Plaintiff’s first argument is titled “Improper Treatment of Unrepresented 

Homeless Party.” The argument is short, and it cites the rule that a party who represents 

him or herself “is to be treated like any other party and is entitled to the same, but no 

greater consideration than other litigants and attorneys.” (Barton v. New United 

Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Numerous cases 

agree. (See Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31; Nwosu v. Uba (2004) 

122 Cal.App.4th 1229, 1246-1247; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 

193; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638; Deauville v. Hall (1961) 

188 Cal.App.2d 535, 547.)

Plaintiff argues this rule should be reserved for “wealthy fools,” and should not be 

applied to parties like him who are unable to afford an attorney. We disagree. As our 

9

 On June 2, 2021, the trial court granted John’s motion for summary judgment and 

entered judgment in his favor, and Plaintiff filed a notice of appeal on June 25, 2021. 

That appeal—case No. C094344—has not been consolidated with this appeal, and it is 

still pending. We thus do not discuss Plaintiff’s claims against John. 
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Supreme Court has held, “self-representation is not a ground for exceptionally lenient 

treatment. Except when a particular rule provides otherwise, the rules of civil procedure 

must apply equally to parties represented by counsel and those who forgo attorney 

representation. [Citation.] . . . A doctrine generally requiring or permitting exceptional 

treatment of parties who represent themselves would lead to a quagmire in the trial 

courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell

(1994) 8 Cal.4th 975, 984-985.) “As an intermediate appellate court we are bound by 

decisions of our Supreme Court.” (Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510, 

517.)

This rule may have consequences in this case. Plaintiff’s briefs are difficult to 

follow and understand, and few, if any, of his contentions are supported by meaningful 

argument or discussion of relevant legal authorities. As the appellant, however, it is 

Plaintiff’s responsibility “to support claims of error with meaningful argument and 

citation to authority. [Citations.] When legal argument with citation to authority is not 

furnished on a particular point, we may treat the point as forfeited and pass it without 

consideration. [Citations.] In addition, citing cases without any discussion of their 

application to the present case results in forfeiture. [Citations.] We are not required to 

examine undeveloped claims or to supply arguments for the litigants. [Citations.]” 

(Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) “[A]sserted grounds for 

appeal that are unsupported by any citation to authority and that merely complain of error 

without presenting a coherent legal argument are deemed abandoned and unworthy of 

discussion.” (Wright v. City of Los Angeles (2001) 93 Cal.App.4th 683, 689.) “A court 

need not consider an issue where reasoned, substantial argument and citation to 

supporting authorities are lacking.” (Woods v. Horton (2008) 167 Cal.App.4th 658, 677

(Woods).) “ ‘When an issue is unsupported by pertinent or cognizable legal argument it 

may be deemed abandoned and discussion by the reviewing court is unnecessary.’ 

[Citation.] ‘Issues do not have a life of their own: if they are not raised or supported by 
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argument or citation to authority, [they are] waived.’ [Citation.]” (Okorie v. Los Angeles 

Unified School Dist. (2017) 14 Cal.App.5th 574, 600 (Okorie), disapproved on another 

ground in Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012, fn. 2.) This 

long line of authority applies to Plaintiff, even though he is representing himself.

These rules do not exist to trip up pro. per. litigants. They exist because “it is a 

fundamental principle of appellate procedure that a trial court judgment is ordinarily 

presumed to be correct and the burden is on an appellant to demonstrate, on the basis of 

the record presented to the appellate court, that the trial court committed an error that 

justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609

(Jameson); see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [“A 

judgment or order of a lower court is presumed to be correct on appeal, and all 

intendments and presumptions are indulged in favor of its correctness”]; Okorie, supra, 

14 Cal.App.5th at p. 599 [“A touchstone legal principle governing appeals is that ‘the 

trial court’s judgment is presumed to be correct, and the appellant has the burden to prove 

otherwise by presenting legal authority on each point made and factual analysis, 

supported by appropriate citations to the material facts in the record; otherwise, the 

argument may be deemed forfeited’ ”].) Thus, the burden is on Plaintiff to overcome the 

presumption that the judgment and all underlying orders are correct. (Hearn v. Howard

(2009) 177 Cal.App.4th 1193, 1207.) The burden is not on us “to search the record to 

ascertain whether it contains support for [Plaintiff’s] contentions,” or to “ ‘furnish a legal 

argument as to how the trial court’s rulings’ ” are incorrect. (Mansell v. Board of 

Administration (1994) 30 Cal.App.4th 539, 545-546.) “It is not our place to construct 

theories or arguments to undermine the judgment and defeat the presumption of 

correctness.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) “An 

appellate court is not required to examine undeveloped claims, nor to make arguments for 

parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) “[I]t is not this 

court’s function to serve as . . . backup appellate counsel.” (Mansell, at p. 546.) Thus, 
14

because Plaintiff fails to support most of his contentions with reasoned and 

comprehensible argument, he fails to rebut the presumption that the trial court’s 

judgment, and all the orders leading up to the judgment, are correct.

II

Denied Continuances

Plaintiff argues the trial court abused its discretion in denying him continuances.

10

 

Plaintiff cites just one case to support this argument—Monastero v. Los Angeles Transit 

Co. (1955) 131 Cal.App.2d 156—but he does not discuss that case at all. “[C]iting cases 

without any discussion of their application to the present case results in forfeiture.” 

(Allen v. City of Sacramento, supra, 234 Cal.App.4th at p. 52.) We also note that 

Monastero did not involve a request for a continuance, and thus appears irrelevant.

“The decision to grant or deny a continuance is committed to the sound discretion 

of the trial court. [Citation.] The trial court’s exercise of that discretion will be upheld if 

it is based on a reasoned judgment and complies with legal principles and policies 

appropriate to the case before the court. [Citation.] A reviewing court may not disturb 

the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing 

in the record. [Citation.] The burden rests on the complaining party to demonstrate from 

the record that such an abuse has occurred.” (Forthmann v. Boyer (2002) 97 Cal.App.4th

977, 984-985.)

Plaintiff does not actually identify or discuss any particular request for a 

continuance that the court denied. For example, he states “incongruously, the judge 

denied continuances,” and he supports this statement by citing “1 AA473:11-475:2, 

511:23-512:3, 518:17, 493-502, 526-527, 831- 836, 843-848, 504-505, 603, 507-508, 

10

 The heading for this argument is “Denied Continuances and Refused to Recuse,” but 

Plaintiff does not actually discuss recusal, and we thus deem abandoned any such 

argument. (Okorie, supra, 14 Cal.App.5th at p. 600.)
15

608-609, 3 AA2303-2306; Argument XVII.” As another example, he states he 

“meritoriously sought continuances in 2020 [and] the judge emphasized denials by 

concurrently fast-tracking to trial (< five-months away) [and] denied with prejudice 

without allowing oral argument,” and he supports this statement by citing “17/28 

AA12466-20287,” which consists of 12 volumes and over 7,800 pages of the record. 

Again, it is not our job to “ ‘ “ ‘to cull the record for the benefit of the appellant.’ ” ’ ”

(Okorie, supra, 14 Cal.App.5th at p. 600.) By simply stating the judge denied 

continuances and then citing portions of the record or cross-referencing other arguments 

in the opening brief, Plaintiff has failed to meet his burden of demonstrating that the trial 

court abused its discretion in denying any particular request for a continuance.

III

Summary Judgment Motions 

Almost half of Plaintiff’s arguments concern the trial court’s grant of summary 

judgment in favor of Defendants. Before discussing those arguments, we first discuss the 

standard of review, the relevant law on wrongful death, and the evidence in support of 

and in opposition to the motions for summary judgment and the trial court’s ruling

thereon.

A. Standard of Review

Summary judgment motions are governed by section 437c. It provides that 

summary judgment is properly granted if “all the papers submitted show that there is no 

triable issue as to any material fact and that the moving party is entitled to a judgment as 

a matter of law.” (§ 437c, subd. (c).) A defendant moving for summary judgment can 

meet its burden by showing that the plaintiff cannot establish one or more elements of a 

cause of action. (§ 437c, subd. (p)(2).) “Once defendants meet this burden, the burden 

shifts to plaintiff to show the existence of a triable issue of material fact.” (Nazir v. 

United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253.) A triable issue of material fact 

exists if the evidence and inferences therefrom would allow a reasonable juror to find the 
16

underlying fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 850, 856.)

“We review a grant of summary judgment de novo; we must decide independently 

whether the facts not subject to triable dispute warrant judgment for the moving party as 

a matter of law.” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) In performing 

this de novo review, we consider all the evidence submitted with the moving and 

opposing papers, except evidence to which objections were made and sustained. 

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) We view the evidence in 

the light most favorable to the plaintiff and resolve evidentiary doubts or ambiguities in 

their favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We accept as 

true both the facts shown by the plaintiff’s evidence and reasonable inferences from that 

evidence. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.)

Although we review the trial court’s decision de novo, we do not ignore that 

decision. Instead, that decision is presumed correct, and it is the appellant’s burden to 

affirmatively establish reversible error. (Jameson, supra, 5 Cal.5th at pp. 608-609; 

Swigart v. Bruno (2017) 13 Cal.App.5th 529, 535.)

We may affirm a ruling granting a motion for summary judgment “if it is correct 

on any ground, regardless of the trial court’s stated reasons.” (Truck Ins. Exchange v. 

County of Los Angeles (2002) 95 Cal.App.4th 13, 20.)

B. The Law in Wrongful Death Cases

At the time the summary judgment motions were filed, only one cause of action 

against Defendants remained: wrongful death. The elements of a cause of action for 

wrongful death are (1) a wrongful act or negligence on the part of the defendants, (2) 

caused the decedent’s death, (3) resulting in damages to the plaintiff. (Quiroz v. Seventh 

Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) Defendants’ motion was based solely 

on the second element—causation.
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In a wrongful death case, “the plaintiff must prove the death was ‘caused by’ the 

defendant’s wrongful act or neglect, i.e., the wrongful act or neglect was a cause in fact 

of the death. [Citations.] To be a cause in fact, the wrongful act must be ‘a substantial 

factor in bringing about’ the death.” (Bromme v. Pavitt, supra, 5 Cal.App.4th at 

pp. 1497-1498.) As relevant here, “ ‘The law is well settled that in a personal injury 

action causation must be proven within a reasonable medical probability based upon 

competent expert testimony. Mere possibility alone is insufficient to establish a prima 

facie case.’ ” (Id. at p. 1498; see also Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 

1542 [“As a general rule, the testimony of an expert witness is required in every 

professional negligence case to establish . . . whether any negligence by the defendant 

caused the plaintiff’s damages”].) “When the moving party produces a competent expert 

declaration showing there is no triable issue of fact on an essential element of the 

opposing party’s claims, the opposing party’s burden is to produce a competent expert 

declaration to the contrary.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761-

762.) Without a competent expert declaration to the contrary, summary judgment is 

appropriately granted in favor of the moving party. (Id. at pp. 761-765.)

C. The Motions for Summary Judgment and the Trial Court’s Ruling

As noted, Defendants’ motions for summary judgment were based solely on 

causation. They argued Plaintiff could not establish that anything they did or failed to do 

caused Anne’s death. Their motions were supported by (1) Anne’s medical records, and 

(2) the declaration of their expert, Dr. Mark Sockell, a physician specializing in internal 

medicine and geriatrics. In Dr. Sockell’s opinion, no act or omission by Dr. Kennedy or 

the staff at Sutter hastened or caused Anne’s death. He explained the basis for his 

opinion as follows. 

Anne was admitted to Sutter on September 27, 2013, after a CT scan showed a 12-

centimeter mass in her left hepatic lobe (i.e., her liver), along with “multiple sclerotic 

osseous lesions indicating likely metastatic disease to the bone. Further imaging revealed 
18

mediastinal adenopathy, suggesting a likely lung primary carcinoma that was widely 

metastatic, and possible bone metastases.” Anne also displayed weakness and dysphagia 

(i.e., difficulty swallowing) consistent with a stroke, but a CT scan of the brain failed to 

find evidence of acute stroke, although it did find extensive small vessel disease and 

evidence of prior infarcts. Anne was discharged home on September 30. In Dr. Sockell’s 

opinion, Anne was “end stage and had untreatable conditions” at this time. He described 

her as “a frail elderly woman with multiple medical comorbidities [who] had evidence of 

widely metastatic cancer, a large liver tumor, mediastinal adenopathy, and probable bone 

metastases.” He states, “Dr. Kennedy correctly assessed her life expectancy as ‘severely 

limited.’ Given her age, severe [chronic obstructive pulmonary disease] and widely 

metastatic cancer, there was, at this time, no effective curative or palliative treatment.”

Anne was brought back to Sutter on November 10, 2013, with increasing shortness 

of breath. Dr. John Hernried, who performed a history and physical, described Anne as 

an 81-year-old woman with multiple medical problems, including end-stage chronic 

obstructive pulmonary disease, weakness, dyspnea (i.e., shortness of breath), 

“hypernatremia (from free water depletion),” and congestive heart failure. She was 

transferred to the intensive care unit two days later because of respiratory failure, and was 

intubated and placed on a ventilator. She was “critically ill,” and was assessed with 

severe sepsis with multiorgan dysfunction (an “overwhelming infection”), likely 

aspiration pneumonia, and neurological, respiratory, and hematologic failure. Stool 

studies confirmed an infection. After treating her with antibiotics, steroids, and deep 

suctioning, Dr. Kennedy tried to wean Anne off the ventilator on multiple occasions 

between November 17 and November 22, but was unable to do so because she suffered 

tachycardia and agonal breathing. She was extubated on November 23, and died shortly 

thereafter. According to Dr. Sockell, when Anne was readmitted to Sutter in November, 

her “condition was end stage.” She was appropriately treated with intubation, antibiotics, 

fluids, and steroids, and died despite the best efforts of Dr. Kennedy and the care team 
19

involved. In Dr. Sockell’s opinion, even if Anne had been left on a ventilator, “more 

likely than not, she would have died from her multiple comorbidities,” including 

“multiple organ system dysfunction, probable metastatic cancer, and multiple infections.” 

He also opined that “[i]n no way” did any act or omission on the part of Dr. Kennedy or 

the Sutter care team cause or hasten Anne’s death.

Plaintiff did not have his own expert to rebut or dispute Dr. Sockell’s opinion. 

Instead, he attacked the evidence Defendants submitted in support of their motions. In 

particular, he objected to Anne’s medical records on the following grounds: 

“Suppression of evidence, incomplete, hearsay, misrepresentation, insufficient record for 

medical expert to derive . . . inferences. Incompetent fraudulent records; no primary 

records; no evidence to give credibility to the hearsay.” He also objected to almost the 

entirety of Dr. Sockell’s declaration on numerous grounds, and he attempted to dispute 

Dr. Sockell’s opinion with his own 43-page declaration and numerous exhibits. In his 

declaration, Plaintiff discussed Anne’s medical records and explained what he believed

they showed based on his own Internet research. To give one example, Plaintiff appears 

to believe that Defendants deliberately overdosed Anne with morphine, first to induce a 

coma in order to fool Plaintiff into believing Anne was dying, and then to kill her when 

the ventilator was removed. Plaintiff’s belief is based on information he gleaned from 

various Web sites about the drugs Anne was taking, combined with his own explanation 

of what he believes her medical records show. Plaintiff also appears to believe that Anne 

did not actually have cancer.

In his reply, Dr. Kennedy objected to Plaintiff’s declaration in its entirety, and to 

almost all of the exhibits he submitted with his opposition.

The trial court overruled Plaintiff’s objections to Dr. Sockell’s declaration and 

Anne’s medical records; overruled Dr. Kennedy’s objections to Plaintiff’s declaration;

and sustained some of Dr. Kennedy’s objections to Plaintiff’s evidence and overruled 

others. It granted Defendants’ motions for summary judgment, finding they met their 
20

burden of showing that Plaintiff could not establish their conduct was a substantial factor 

in causing Anne’s death, and that Plaintiff failed to produce any admissible evidence 

showing the existence of a triable issue of fact on causation.

D. Analysis

1. Disputed UMF’s

Plaintiff’s Argument III is headed “Disputed UMFs,” which refers to “undisputed 

material facts.” A party moving for summary judgment must file “a separate statement 

setting forth plainly and concisely all material facts that the moving party contends are 

undisputed. Each of the material facts stated shall be followed by a reference to the 

supporting evidence.” (§ 437c, subd. (b)(1).) The party opposing summary judgment 

must file their own “separate statement that responds to each of the material facts 

contended by the moving party to be undisputed, indicating if the opposing party agrees 

or disagrees that those facts are undisputed. . . . Each material fact contended by the 

opposing party to be disputed shall be followed by a reference to the opposing evidence.” 

(Id., subd. (b)(3).) The facts identified in the separate statement are generally referred to 

as undisputed material facts or UMFs. The purpose of the separate statement is to

“ ‘permit trial courts to expeditiously review complex motions for . . . summary judgment 

to determine quickly and efficiently whether material facts are undisputed.’ [Citation.] 

The separate statement ‘provides a convenient and expeditious vehicle permitting the trial 

court to hone in on the truly disputed facts.’ ” (Nazir v. United Airlines Inc., supra, 

178 Cal.App.4th at pp. 251-252.) If a triable issue is raised as to any of the facts in the 

separate statement, the motion for summary judgment must generally be denied. (Id. at 

p. 252.) 

It appears that Plaintiff contends some of the facts in Defendants’ separate 

statements are, in fact, disputed, which would preclude summary judgment. Plaintiff, 

however, does not identify any facts that he contends are disputed. Indeed, he does not 

discuss Defendants’ separate statements at all, and thus gives us no reason to find that 
21

any of the material facts proffered by Defendants are, in fact, disputed. Here, in its 

entirety, is Plaintiff’s argument regarding “Disputed UMFs.” 

“Courts must consider all ‘inferences reasonably deducible 

from the evidence’ and construe Plaintiff’s papers liberally.

(Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 

1193, 1201-1202; CCP § 437c(c))

“Plaintiff’s undisputed material facts (19 AA13442-13485; 

errata [20 AA14342-14370, 14462-14484; 24 AA16874-

16878]) were facts-inferences (Waschek v. Department of 

Motor Vehicles (1997) 59 Cal.App.4th 640, 647 

[‘not...derived from speculation’ etc.]) with Kennedy’s 

objections overruled (23 AA16845-16846; 28 AA20372:10-

11) excepting bald errors sustaining some evidentiary 

objections and overruling Plaintiff’s objections (Arguments 

IV-IX, XIII) 

“The judge failed to consider court-ordered supplemental 

briefing supporting Plaintiff. (E.g., Arguments IV.H, 

XVI.C)” 

This is wholly insufficient to either (1) demonstrate that any of Defendants’ 

proffered facts are actually disputed, or (2) overcome the presumption that the judgment 

is correct. 

2. Challenge to Evidence Submitted with Defendants’ Motions for Summary

Judgment

Plaintiff contends that Defendants’ motions were “based on inadmissible hearsay 

and incompetent expert testimony.” This is by far the longest section of his brief, and 

again, is difficult to understand. The gist, however, appears to be that Plaintiff contends 

(1) Anne’s medical records were inadmissible, (2) Dr. Sockell thus improperly relied on 

her medical records when forming his opinion on causation, and (3) Dr. Sockell’s opinion 

is otherwise incompetent.

11

 We disagree. 

11

 This section of his brief also contains several tangential arguments that have nothing 

to do with the admissibility of Anne’s medical records or Dr. Sockell’s competence to 
22

Plaintiff argues Anne’s medical records are inadmissible hearsay and thus could 

not be relied on by Dr. Sockell in forming his opinion. We disagree with both 

contentions. “Although hospital and medical records are hearsay, they can be admitted 

under the business records exception to the hearsay rule” codified in Evidence Code 

section 1271 if they are properly authenticated. (Garibay v. Hemmat (2008) 

161 Cal.App.4th 735, 742.) Here, the relevant portion of Anne’s medical records were 

attached to the appendix of evidence submitted by Defendants in support of their 

motions, along with an affidavit from Sutter’s custodian of records establishing they are 

business records. Nowhere in his opening brief does Plaintiff contend the medical 

records were not properly authenticated (and we would reject any such contention in any 

event). Moreover, properly authenticated medical records “can be used as a basis for an 

expert medical opinion,” (id. at p. 743), and “are the type of records on which medical 

experts may and do rely in order to give expert testimony in a medical malpractice case,” 

(Wicks v. Antelope Valley Healthcare Dist. (2020) 49 Cal.App.5th 866, 876).

Plaintiff also appears to contend that Anne’s medical records are “fraudulent,” and 

that they thus cannot support any of Defendants’ proffered facts, and therefore render Dr. 

Sockell’s opinion incompetent. He spends almost 30 pages in his opening brief 

discussing what he alleges are “fraudulent” hospital records containing “fraudulent” 

diagnoses that “masked” the actual cause of Anne’s death. Plaintiff claims that the 

results of tests, i.e., CT scans and x-rays, were improperly interpreted, which amounted to 

fraudulent medical documentation. He also disputes that Anne consented to treatment, 

and he therefore concludes she could not consent to nontreatment, apparently asking us to 

offer an opinion on causation, for example, the discussion of consent law and 

Defendants’ alleged financial motivations. We need not, and do not, respond to 

“ ‘lurking’ ” or tangential arguments not clearly presented under a heading. (Imagistics 

Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 593, 

fn. 10.)
23

find that the medical records documenting Anne’s consent for either (treatment or 

nontreatment) are thus fraudulent. Plaintiff points to nothing in the record to demonstrate 

Anne’s medical records are fraudulent. 

Plaintiff also contends Dr. Sockell’s declaration is too conclusory to support his 

opinion. He cites McAlpine v. Norman (2020) 51 Cal.App.5th 933 for the proposition 

that a defendant moving for summary judgment cannot meet its burden “ ‘by an expert 

declaration consisting of ultimate facts and conclusions that are unsupported by factual 

detail and reasoned explanation, even if it is admitted and unopposed.’ [Citation.] 

‘ “ ‘ “[B]ecause an expert opinion is worth no more than the reasons and facts on which it 

is based,” ’ ” ’ an expert opinion rendered without a reasoned explanation of why the 

underlying facts lead to the ultimate conclusion has no evidentiary value.” (Id. at p. 939.) 

Where Defendants support their motion for summary judgment with “the bare conclusion 

of [their] expert, unsupported by reasons or explanations,” they “[do] not meet their 

initial burden of production, [and] they [are] not entitled to summary judgment, 

regardless of the adequacy of the plaintiff’s opposition.” (Id. at p. 940.) With no 

discussion, Plaintiff asserts Dr. Sockell’s declaration is “analogous” to the declaration 

found insufficient in McAlpine to support a motion for summary judgment. Particularly 

with no discussion from Plaintiff on this issue, we find Dr. Sockell’s declaration contains 

sufficient factual detail and reasoned explanation to support his conclusion that 

Defendants did not cause Anne’s death. 

Plaintiff appears to contend Dr. Sockell is not qualified to offer an opinion on 

causation. He states he “objected to Sockell’s qualifications (e.g., 19 AA13406:15-

13407:2),” but he does not tell us on what basis he objected. The cited portion of the 

record contains Plaintiff’s objection to Dr. Sockell’s statement that “I have treated many 

patients with similar health conditions for which Anne Ringkamp was treated for during 

the time period in question.” Plaintiff objected to this statement on the grounds that it 
24

lacks foundation, constitutes an inadmissible opinion, and is conclusory. The trial court 

overruled this objection, and Plaintiff fails to convince us this ruling was erroneous. 

3. Failure to Disprove Plaintiff’s Case 

Plaintiff contends he did not need an expert to rebut Dr. Sockell’s opinion on 

causation, and that causation is a disputed issue of fact that must be decided by a jury. 

As noted above, an expert is generally required to establish causation in a personal 

injury case. “Where the complexity of the causation issue is beyond common experience, 

expert testimony is required to establish causation.” (Garbell v. Conejo Hardwoods, Inc.

(2011) 193 Cal.App.4th 1563, 1569; see also Ryan v. Real Estate of Pacific, Inc. (2019) 

32 Cal.App.5th 637, 644-645 [expert required in professional negligence cases except in 

cases where negligence is “obvious to laymen”].) Here we find that the complexity of 

causation is beyond common experience. Anne died after a two-week hospitalization 

during which she suffered from respiratory failure and sepsis and spent 10 days on a 

ventilator. At the time, she was 81 years old, in poor health, and had multiple medical 

problems. We cannot say that the cause of her death is so simple or obvious that a lay 

person could understand it without the help of an expert.

Plaintiff also states this is a “modern res ipsa loquitur case,” although he never 

explains what he means by this, and he discusses no applicable legal authority. He does 

cite three cases, two of which—Osborn v. Irwin Memorial Blood Bank (1992)

5 Cal.App.4th 234 and Levin v. State of California (1983) 146 Cal.App.3d 410—do not 

mention res ipsa loquitur. A third case—Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756—

barely mentions it in passing, and Plaintiff never discusses that case or explains its

applicability to this case.

Res ipsa loquitur is Latin for “the thing speaks for itself.” (Black’s Law Dict. (5th 

ed. 1979) p. 1173, col.2.) “ ‘The doctrine of res ipsa loquitur is applicable where the 

accident is of such a nature that it can be said, in the light of past experience, that it 

probably was the result of negligence by someone and that the defendant is probably the 
25

one responsible.’ [Citations.] [¶] Res ipsa loquitur is an evidentiary rule for 

‘determining whether circumstantial evidence of negligence is sufficient.’ [Citation.]” 

(Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1161.) “In order to 

invoke res ipsa loquitur, the plaintiff has the burden to establish three conditions: ‘(1) the 

event must be of a kind which ordinarily does not occur in the absence of someone’s 

negligence; (2) it must be caused by an agency or instrumentality within the exclusive 

control of the defendant; (3) it must not have been due to any voluntary action or 

contribution on the part of the plaintiff.’ [Citations.] If the plaintiff establishes these 

conditions, the doctrine applies and the defendant is presumptively negligent.” (Id. at 

pp. 1161-1162.) Presumably, Plaintiff contends the doctrine applies in this case and 

raises a presumption that Defendants were negligent, and their negligence caused Anne’s 

death. We disagree, because it cannot be said that the death of an 81-year-old woman 

with multiple medical problems “ ‘ordinarily [would] . . . not occur in the absence of 

someone’s negligence.’ ” (Id. at p. 1161.)

We thus agree that expert testimony was required in this case in order to establish 

causation, and that Plaintiff’s failure to proffer an expert on causation is fatal to his claim. 

4. “Technicalities Allow Judicial Abuse”

Plaintiff contends that, in ruling on the motions for summary judgment, the trial 

court erred by relying on “technicalities.” He cites section 437c, subdivision (h), which 

provides that a summary judgment motion should be continued when it is shown that 

further discovery is necessary. He seemingly goes on to complain about the trial court 

both continuing the hearing on the motion, and not continuing the hearing. However, he 

never specifically identifies any particular motion he made or opposed, and the 

correlating ruling. Plaintiff then proceeds to discuss what he calls “Lackner exceptions,” 

“Bushling traps,” and “Beroiz traps,” which refer to three cases: Lackner v. North (2006) 

135 Cal.App.4th 1188, Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 
26

and Beroiz v. Wahl (2000) 84 Cal.App.4th 485. All of these cases address, in part, the 

procedural requirements of motions for summary judgment. 

Lackner concerned section 437c’s requirement that a motion for summary 

judgment must be served “at least 75 days before the time appointed for hearing.” 

(§ 437c, subd. (a)(2).) Plaintiff does not discuss Lackner other than to state it “created a 

narrow exception to the 75-day requirement [citation] by assuming a shortened notice is 

not prejudicial if a party responds and objects without explaining the prejudice. [¶] 

Extending the rule beyond the specifics of that case harms unrepresented parties prone to 

believe prejudice is obvious.” (Italics added.) Plaintiff does not explain what a Lackner

exception is or why it should not apply in this case. More importantly, there is no need to 

apply an exception to the 75-day notice requirement, because, as discussed below,

Defendants met the 75-day notice requirement. 

Bushling involved a request to continue a hearing on a motion for summary 

judgment in order to obtain evidence necessary to oppose the motion. Plaintiff does not 

discuss Bushling or explain its applicability to this case. He also does not explain what a 

Bushling trap is. We presume, however, that Plaintiff contends the trial court improperly 

denied his request to continue the hearing on the summary judgment motions in order to 

obtain discovery of facts essential to justify his opposition. He states he “sought a goodcause continuance of Kennedy’s MSJ,” and then cites “17 AA 13169-13253,” albeit with 

no discussion. The cited pages are a May 15, 2020, application filed by Plaintiff to 

continue the hearing on Dr. Kennedy’s motion for summary judgment “because facts 

essential to oppose the summary judgment motion exist and [are] unavailable to plaintiff 

in time to oppose the motion.” The application includes a declaration from Plaintiff that 

describes the status of various discovery requests and motions to compel involving 

Defendants and others (including multiple discovery issues involving John, which would 

appear to have no relevance to Dr. Kennedy’s motion), but Plaintiff does not clearly state 
27

why any of this discovery (or any other discovery) is necessary to oppose Dr. Kennedy’s 

motion for summary judgment (which was based solely on causation).

Plaintiff also states, “an inarguably code-compliant justification of the obvious 

was as burdensome of responding to MSJs (20 AA14756-14922).” The cited pages are 

an application filed by Plaintiff on July 24, 2020, to continue the hearing on the summary 

judgment motions, incorporating the May 15, 2020, application. This second application 

is supported by a 41-page declaration from Plaintiff that is similar to the declaration in 

support of the first application. Plaintiff also states if the court appoints an expert on his 

behalf, that expert “would conclude each defendant contributed to a shortening of my 

mother’s life through fraud, battery, neglect, and ultimately an overdose consisting of a 

month’s supply of Ativan and 36-fold increase in morphine, but I cannot obtain an expert 

as noted in my motion for experts.” In other words, Plaintiff does not have an expert, but 

if the court would appoint one for him, the expert would be able to dispute Dr. Sockell’s 

opinion on causation. Plaintiff also stated (obliquely) that he needed to identify what 

documents Dr. Sockell reviewed in forming his opinions.

Plaintiff does not tell us how the trial court ruled on either application. Assuming 

the trial court denied the applications, Plaintiff fails to demonstrate an abuse of 

discretion. It appears, however, that the trial court granted one of the applications, 

because Dr. Kennedy’s brief points us to a ruling issued on September 15, 2020, 

continuing the hearing on the summary judgment motions to October 27, and granting 

Plaintiff’s motion to depose Dr. Sockell.

The final case Plaintiff cites is Beroiz, which involved the requirement that a 

motion for summary judgment “shall be heard no later than 30 days before the date of 

trial, unless the court for good cause orders otherwise.” (§ 437c, subd. (a)(3).) Plaintiff 

fails to explain why or how Beroiz is applicable to the facts of this case because he never 

suggests the motions for summary judgment were held within 30 days of trial. Moreover, 

he ends his argument about a Beroiz trap by noting, “A retired judge prevented a Beroiz
28

Trap,” (first italics added), which suggests that whatever trap Beroiz created, it was 

ultimately avoided in this case.

5. Evidentiary Rulings 

Plaintiff’s 13th argument is headed “Courts Cultivate a Plague of Science-Deniers 

That is Correctible with Decisional Law Reversing Evidentiary Rulings.” It appears he is 

asking us to create a new exception to the hearsay rule, or to substantially expand an 

existing one, because he cites In re Cindy L. (1997) 17 Cal.4th 15, and in that case our 

Supreme Court held that, in certain very limited circumstances, appellate courts have the 

power to create new exceptions to the hearsay rule. (Id. at p. 27.) It further appears that 

Plaintiff wants us to make it easier to introduce “scientific and medical facts” pursuant to 

Evidence Code section 1341, which provides, “Historical works, books of science or art, 

and published maps or charts, made by persons indifferent between the parties, are not 

made inadmissible by the hearsay rule when offered to prove facts of general notoriety 

and interest.” (Evid. Code, § 1341.) As examples, Plaintiff identifies facts verifiable by 

“multiple government and university sources,” and facts “such as the metabolic decay of 

drugs[ and] their effects and side effects.” Plaintiff, however, provides no reasoned 

argument or citation to authorities explaining why we should create a new exception to 

the hearsay rule or expand an existing one, and we thus deem the argument “abandoned 

and unworthy of discussion.” (Wright v. City of Los Angeles, supra, 93 Cal.App.4th at 

p. 689.) 

In addition to asking us to loosen rules for the admission of certain scientific and 

medical facts, Plaintiff also contends the trial court abused its discretion when it sustained 

objections to evidence he submitted in opposition to Defendants’ summary judgment 

motions. This contention, however, is not supported by meaningful or coherent argument 

or citation to relevant authorities. Instead, Plaintiff simply asserts the trial court 

erroneously sustained objections, but fails to clearly identify the objection and the 

evidence to which the objection was made, or to clearly explain why the trial court erred 
29

in sustaining the objection. Again, it is not our job to cull the record in search of error, it 

is Plaintiff’s job to affirmatively demonstrate error, (Okorie, supra, 14 Cal.App.5th at 

p. 600); we are “not required to examine undeveloped claims, nor to make arguments for 

parties,” (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106); and “it is not 

this court’s function to serve as . . . backup appellate counsel,” (Mansell v. Board of 

Administration, supra, 30 Cal.App.4th at p. 546). By failing to provide us with reasoned 

argument or analysis about any particular evidentiary ruling, Plaintiff has failed to 

overcome the presumption that the rulings were correct.

6. Code Noncompliance

Plaintiff argues Defendants’ motions for summary judgment were “codenoncompliant” because they violated a provision in the summary judgment statute that 

provides, “A party shall not move for summary judgment based on issues asserted in a 

prior motion for summary adjudication and denied by the court unless that party 

establishes, to the satisfaction of the court, newly discovered facts or circumstances or a 

change of law supporting the issues reasserted in the summary judgment motion.” 

(§ 437c, subd. (f)(2).) This “prohibition against repeated summary judgment motions 

was added to make the summary judgment process more efficient and to reduce the 

opportunities for abuses of the procedure.” (Bagley v. TRW, Inc. (1999) 73 Cal.App.4th

1092, 1096, fn. 3.) 

As noted above, Defendants filed motions for summary judgment or adjudication 

in 2016, which the court denied. They then filed second motions for summary judgment 

or adjudication in 2020, which the court granted. Plaintiff contends the second motions 

violated the prohibition against repeat summary judgment motions because Defendants 

failed to establish newly discovered facts or circumstances or a change of law. The trial 

court permitted supplemental briefing on this issue, and ultimately ruled it was not

precluded from considering the second motions because they “addresse[d] causation, a 
30

new issue not previously ruled on by the Court. (Nieto v. Blue Shield of California Life 

& Health Ins. Co. (2010) 181 Cal.App.4th 60, 71-72.)” Plaintiff challenges this ruling.

In Nieto, the court held the rule against repeat summary judgment motions did not

bar a second motion that was based on “an issue not raised by the first motion.” (Nieto v. 

Blue Shield of California Life & Health Ins. Co., supra, 181 Cal.App.4th at p. 72.) Dr. 

Kennedy’s second motion for summary judgment was clearly based on an issue not 

raised by his first motion. His second motion was based solely on causation, and his first 

motion was based solely on the standard of care.12 We thus agree that Dr. Kennedy’s 

second motion was not barred by the prohibition against repeated summary judgment 

motions. 

Sutter’s motions are different, because its first motion was based on causation. It 

supported its motion by proffering the opinion of an expert who stated, “Ms. Ringkamp’s 

death was not caused by any negligent acts or omissions in the care and treatment 

provided to her by Sutter Davis Hospital’s nursing and paraprofessional staff. Rather, 

Ms. Ringkamp’s complex combination of medical conditions . . . , including evidence of 

metastatic cancer and a large liver tumor, ultimately caused her death.” Sutter’s second 

motion, which was also based on causation, thus did not address a new issue. Ultimately, 

however, we are not convinced it was improper for the trial court to consider Sutter’s 

second motion, because it denied the first motion on technical grounds having nothing to 

do with causation. Thus, although Sutter raised causation in both of its motions, the trial 

12

 We recognize that the separate statement in support of Dr. Kennedy’s first motion for 

summary judgment identified causation as a separate issue—“Issue #2: Daniel J. 

Kennedy, M.D.’s treatment did not cause Anne Ringkamp’s demise.” However, “It is 

elemental that a notice of motion must state in writing the ‘grounds upon which it will be 

made.’ [Citations.] Only the grounds specified in the notice of motion may be 

considered by the trial court.” (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 

1545.) Because the notice of motion stated it was based on the standard of care, that is 

the only issue the court could consider.
31

court did not deny the first motion on that ground, and Sutter’s second motion was thus 

not “based on issues asserted in a prior motion . . . and denied by the court.” (§ 437c, 

subd. (f)(2), italics added.) 

7. Insufficient Notice 

As noted above when discussing the so-called Lackner exception, section 437c 

provides a motion for summary judgment “shall be served on all other parties to the 

action at least 75 days before the time appointed for hearing. If the notice is served by 

mail, the required 75-day period of notice shall be increased by 5 days.” (§ 437c, subd. 

(a)(2).) Plaintiff argues both motions provided insufficient notice. We disagree. 

Dr. Kennedy’s motion was filed March 6, 2020, and the hearing was scheduled for 

June 9, 2020 (which is 95 days after the motion was filed). According to the proof of 

service, Plaintiff was served by mail on March 13, 2020, which is 88 days prior to the 

hearing, and well within section 437c’s requirements.

Sutter’s motion was filed on May 19, 2020, and the hearing was scheduled for 

August 13, 2020. According to the proof of service, the motion was served on Plaintiff 

by e-mail on May 15, 2020, and was also served by mail on June 11, 2020. May 15 is 90 

days before the August 13 hearing, while June 11 is 63 days before the hearing. Service 

by e-mail was thus timely, but service by mail was not. 

In 2020, when this issue arose below, electronic service was authorized if a party 

“ha[d] agreed to accept electronic service in that specific action . . . .” (Former § 1010.6, 

subd. (a)(2)(A)(i).) Plaintiff appears to argue he did not agree to accept electronic 

service, that service by e-mail was thus ineffective, and that service was thus untimely. 

We disagree with all three arguments. 

After being served by e-mail on May 15, Plaintiff filed an application in the trial 

court to have Sutter “serve MSJ per code.” In the application, he acknowledged that he 

received an e-mail on May 15 stating “Sharon Brazell has shared 5 files,” and clearly 

identifying the files as Sutter’s summary judgment papers; the e-mail was from 
32

“delivery@spaces.Hightailmail.com.” Brazell also sent him an e-mail that same day 

stating: “You should have received an email from me via Hightail attaching Sutter’s 

motion for summary judgment, or in the alternative, summary adjudication, together with 

supporting documents. [¶] If you do not have a Hightail account, you will need to go to 

www.hightail.com and create a free account.[13] Once you do that, you will be able to 

download the above-referenced documents. Please let me know if you have any 

questions.” Plaintiff states when he tried to download the files, he was routed to a Web

site to create an account to obtain the documents, but he declined to do so because “it is 

my belief that Sutter is up to something malicious by insisting I join some third party 

platform. It smells bad to me.” In his application, Plaintiff stated he was “willing to 

accept email service, but not the way Sutter counsel wants it.” (Italics added.) The trial 

court denied Plaintiff’s application, finding he had consented to service by e-mail.

As noted above, the Code of Civil Procedure permits electronic service if a party 

agrees thereto. In his application to the trial court, Plaintiff essentially acknowledged he 

agreed to accept electronic service. Electronic service means service of a document “by 

either electronic transmission or electronic notification.” (§ 1010.6, subd. (a)(1)(A), 

italics added.) Electronic transmission means “the transmission of a document by 

electronic means to the electronic service address at through which a party . . . has 

authorized electronic service.” (Former § 1010.6, subd. (a)(1)(B).) Electronic 

notification means “the notification of the party . . . that a document is served by sending 

an electronic message to the electronic address at or through which the party . . . has 

authorized electronic service, specifying the exact name of the document served, and 

providing a hyperlink at which the served document may be viewed and downloaded.” 

(Former § 1010.6, subd. (a)(1)(C).) Sutter served its motion by electronic notification 

13

 Hightail appears to be an electronic document sharing platform.
33

(i.e., it sent Plaintiff an e-mail that provided a hyperlink at which the documents could be 

viewed and downloaded). Sutter’s motion was thus properly, and timely, served. 

8. Spoliation

Plaintiff’s fifth argument is titled “Spoliation Prevented Burden Shifting.” 

Spoliation refers to the intentional destruction or suppression of evidence. (Cedars-Sinai 

Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4.) “[T]here are a number of . . . 

remedies that seek to punish and deter the intentional spoliation of evidence,” including 

“the evidentiary inference that evidence which one party has destroyed or rendered 

unavailable was unfavorable to that party.” (Id. at p. 11.) This inference is codified in 

Evidence Code section 413, which provides, “In determining what inferences to draw 

from the evidence or facts in the case against a party, the trier of fact may consider, 

among other things, the party’s failure to explain or to deny by his testimony such 

evidence or facts in the case against him, or his willful suppression of evidence relating 

thereto, if such be the case.” (Evid. Code, § 413.) Plaintiff cites Cedars-Sinai Medical 

Center and Evidence Code section 413, but does not discuss them. Again, “citing cases 

[or statutes] without any discussion of their application to the present case results in 

forfeiture.” (Allen v. City of Sacramento, supra, 234 Cal.App.4th at p. 52.) 

Plaintiff contends that Defendants intentionally destroyed or suppressed evidence, 

and that it is thus appropriate to infer that this evidence would be unfavorable to them. 

To support his contention, he lists over 250 pages of records that Defendants “effectively 

spoliated.” He fails to explain, however, how these records were either destroyed or 

suppressed. Moreover, rather than making cogent arguments about either spoliation or 

the records he cites, he simply refers us to other sections of his brief, including sections 

VIII.B(1); VIII.B(2); VIII.C.(1)(a)(2); VIII.C(2)(a)1-VIII.C(2)(a)5; VIII.C(2)(b); 

VIII.C(2)(c)1; VIII.C(3)-VIII.C(6)(b); IV.D(2); IV.F(1); IV.F(2); IV.F(3); and 

IV.F(11)(b). This is inadequate to sustain his burden of overcoming the presumption that 

the trial court’s judgment and orders are correct. Again, “it is not this court’s role to 
34

construct theories or arguments that would undermine the judgment and defeat the 

presumption of correctness. Rather, an appellant is required to present a cognizable legal 

argument in support of reversal of the judgment. ‘When an issue is unsupported by 

pertinent or cognizable legal argument it may be deemed abandoned and discussion by 

the reviewing court is unnecessary.’ [Citation.] ‘Issues do not have a life of their own: 

if they are not raised or supported by argument or citation to authority, [they are] 

waived.’ [Citation.] Further, an appellant is required to explain the relevance of facts 

cited in his or her brief. This court is not ‘ “ ‘obligate[d] . . . to cull the record for the 

benefit of the appellant.’ ” ’ [Citation].” (Okorie, supra, 14 Cal.App.5th at p. 600.) 

Because Plaintiff proffers no cognizable legal argument to support his argument about 

spoliation, we deem the issue waived and do not discuss it further. 

IV

Discovery 

Plaintiff makes three arguments about discovery. The first argument is titled 

“Reopen Discovery and Reverse Rulings,” and it concerns discovery rulings. “The trial 

court’s ruling on a motion to compel discovery is reviewed for abuse of discretion.” 

(Saeta v. Superior Court (2004) 117 Cal.App.4th 261, 266.) As the appellant, it is 

Plaintiff’s burden to affirmatively demonstrate the trial court abused its discretion. (See 

Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1191.) He fails to meet 

his burden.

Plaintiff begins his argument by stating that space limitations forced him to 

“summariz[e] problems,” and he refers us to “the underlying papers (including 

continuances and objections) for full factual and legal justifications.” This is both 

improper and inadequate to meet his burden of demonstrating the trial court abused its 

discretion. Again, “parties are required to include argument and citation to authority in 

their briefs, and the absence of these necessary elements allows this court to treat . . . 

[the] issue as waived.” (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 
35

1448, italics added.) Plaintiff cannot simply direct us to the underlying papers and hope 

we will find legal error. 

The last section of this argument is subheaded “responses requiring review.” 

From that subheading, it appears Plaintiff wants us to “review” the following discovery 

responses: Sutter’s responses to (1) six requests for production of documents (sets 2 

through 7), (2) eight special interrogatories (sets 2 through 9), and (3) two requests for 

admissions (sets 2 & 4); and Kennedy’s responses to (1) three requests for production of 

documents (sets 1, 2 and 4), (2) five special interrogatories (sets 1, 2, 3, 4 & 7), and (3) 

two requests for admissions (sets 4 & 5). All told, Plaintiff has identified 26 sets of 

discovery responses that somehow require our review. 

Here, in its entirety, is Plaintiff’s argument concerning two of those responses: 

“Judge refused to hear motions (RFP6-RFP7) . . . [¶] . . . 

concerning admission forms, hidden-spoliated/electronic 

records and defenses; Sutter never responded to RFP6; Sutter 

produced nothing supporting affirmative defenses (Section 

A(6); 25 AA18067-18118; 27, AA19851-19919, 19255-

19841 [esp. 19328:10-19330:23]; 28 AA20286-20287, 

20366-20367; Argument II.C)”

The cited portions of the record total over 700 pages. Plaintiff’s one-sentence 

argument, followed by a citation to hundreds of pages of records, is insufficient to 

demonstrate the trial court abused its discretion in denying any motion to compel. By 

simply directing us to the underlying papers, Plaintiff has forfeited any argument about 

the trial court’s discovery rulings. (See Okorie, supra, 14 Cal.App.5th at pp. 599-600.) 

His arguments concerning the other 24 responses suffer from the same problem. Plaintiff 

thus fails to demonstrate the trial court abused its discretion when ruling on any discovery 

motions. 

Plaintiff’s second argument about discovery concerns Evidence Code section 

1157, which “protects from discovery reports and other documents of any medical staff 

committee assigned the task of evaluating a doctor’s performance. . . . ‘Section 1157 was 
36

enacted upon the theory that external access to peer investigations conducted by staff 

committees stifles candor and inhibits objectivity. It evinces a legislative judgment that 

the quality of in-hospital medical practice will be elevated by armoring staff inquiries 

with a measure of confidentiality.’ ” (West Covina Hospital v. Superior Court (1984) 

153 Cal.App.3d 134, 136.) 

The heading of this section of Plaintiff’s brief is “Evidence Code Section 1157 

Privilege Masked Treatment-Administrative Decisions To Thwart Discovery.” It thus 

appears that Plaintiff contends Defendants cited Evidence Code section 1157 to justify 

their refusal to produce certain documents in response to discovery, but that the 

documents are not, in fact, protected from discovery. Again, however, Plaintiff fails to 

support his argument in any meaningful way. For example, he cites Sutter’s response to 

a request to produce “All pharmacy RECORDS concerning Anne Ringkamp produced 

between August 9, 2013 and January 5, 2015.” Sutter responded, in full, “Defendant has 

produced all relevant records in its possession, custody or control.” This response does 

not cite Evidence Code section 1157, much less demonstrate that Defendants 

inappropriately relied on that section when refusing to produce certain documents. 

Plaintiff also cites several pages of medical records regarding Anne, including 

records that note Sutter staff were attempting to deal with the “[v]ery complicated social 

dynamic” between Plaintiff and John, and the fact that “[b]oth John and [Plaintiff] have 

made claims that the other one is abusive or neglectful to pt.” He also cites a “Report of 

Suspected Dependent Adult/Elder Abuse” made by a Sutter social worker who reported 

that John had stated Plaintiff was financially abusing Anne. Plaintiff fails to explain how 

any of these records demonstrate that Defendants inappropriately refused to produce 

discoverable documents in reliance on Evidence Code section 1157. 

Because Plaintiff fails to support any claim of error regarding Evidence Code 

section 1157, or explain its applicability to this case, he has forfeited any such claim, and 

we accordingly decline to consider it. 
37

Plaintiff’s third, and final, argument about discovery is titled “Discovery Codes 

(Concerning Sanctions and Responses) Unconstitutionally And Unnecessarily Skew 

Outcomes In Asymmetric Litigation.” He appears to contend the Civil Discovery Act’s 

(§ 2016.010 et seq.) provisions regarding sanctions are unconstitutional because they 

effectively deny pro. per. and economically marginalized litigants equal access to the 

courts.14 His primary argument appears to concern those provisions in the Civil 

Discovery Act that require the court to impose monetary sanctions against any party who 

“unsuccessfully makes or opposes a motion to compel . . . unless it findsthat the one 

subject to the sanctions acted with substantial justification or that other circumstances 

make the imposition of the sanctions unjust.” (§§ 2030.300, subd. (d) [interrogatories], 

2031.320, subd. (b) [requests for production of documents], 2033.290, subd. (d) [requests 

for admissions].) Plaintiff contends these provisions adversely impact pro. per. litigants 

because they do not understand the technicalities of propounding and responding to 

discovery, and thus inevitably end up being sanctioned for unsuccessfully making or 

opposing motions to compel. He recommends revising the Civil Discovery Act to 

provide different methods of calculating the amount of sanctions when issued for or 

against unrepresented parties, and he has even drafted new language to be used for this 

purpose. Rewriting the Civil Discovery Act, however, “ ‘is a job for the Legislature, not 

the courts; our role is to interpret statutes, not to [re]write them.’ ” (Fort Bragg Unified 

School Dist. v. Colonial American Casualty & Surety Co. (2011) 194 Cal.App.4th 891, 

910.) 

To the extent Plaintiff contends the Civil Discovery Act’s sanction provisions are 

unconstitutional, he fails to support his contention with reasoned argument or citation to 

14

 He made similar arguments in a petition for writ of mandate filed on October 8, 2019. 

We denied the petition. (Scaccia v. Superior Court (C090545, petn. den. Nov. 15, 

2019).)
38

authorities, and we thus disregard it. (Okorie, supra, 14 Cal.App.5th at p. 600; Woods, 

supra, 167 Cal.App.4th at p. 677.) To the extent he complains about the unjustness of 

any particular order awarding sanctions against him, he fails to identify any such order. 

V

Failure to Appoint an Expert

Plaintiff argues the trial court abused its discretion in failing to appoint an expert 

on his behalf. We find no abuse of discretion. 

In July 2018 and again in July 2020, Plaintiff filed a motion asking the court to 

appoint him an expert because he could not afford one. Because the experts he contacted 

told him they will only work with attorneys, he also asked the court to appoint him an 

attorney to work with the expert. In support of both motions, he cited Evidence Code 

section 730, which provides, “When it appears to the court . . . that expert evidence is or 

may be required by the court or by any party to the action, the court on its own motion or 

on motion of any party may appoint one or more experts to investigate, to render a report 

as may be ordered by the court, and to testify as an expert at the trial of the action relative 

to the fact or matter as to which the expert evidence is or may be required. The court 

may fix the compensation for these services, if any, rendered by any person appointed 

under this section . . . at the amount as seems reasonable to the court.” (Evid. Code, 

§ 730.) The expert’s compensation shall be paid either by the court or the county in 

which the court sits, or by the parties “in a proportion as the court may determine.” 

(Evid. Code, § 731, subd. (c); see also id., subd. (b).) The court denied both motions, 

noting “there is no legal authority supporting plaintiff’s request for appointment of an 

expert . . . at the Court’s or defendants’ expense in a medical malpractice action.” It also 

noted “Plaintiff has not shown why he failed to hire an attorney on a contingency basis 

since 2014.”

We review a decision about whether to appoint an expert pursuant to Evidence 

Code section 730 for an abuse of discretion. (In re Marriage of E.U. & J.E. (2012) 
39

212 Cal.App.4th 1377, 1389.) As Plaintiff correctly notes (and as we discussed above), 

an expert is generally required in a medical malpractice case to establish both the 

standard of care and causation. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943; 

Bromme v. Pavitt, supra, 5 Cal.App.4th at p. 1504.) Because Plaintiff cannot prove his 

case without an expert, he argues the court abused its discretion in refusing to appoint one 

for him. As Defendants accurately note, however, there appear to be no cases under 

Evidence Code section 730 where a court has appointed an expert for a plaintiff in a 

medical malpractice case at the expense of the court, the county, or the defendant. 

Plaintiff fails to convince us the trial court abused its discretion in refusing to appoint an 

expert. 

Plaintiff also supported his motions by citing a local rule that provided, “Where a 

party is indigent and an expert is necessary to enable counsel to properly represent the 

party, counsel may apply for the appointment of an expert for the purpose of (1) assisting 

counsel in case preparation, and/or (2) testifying the jurisdictional, disposition, or other 

hearing.” (Super. Ct. Yolo Court, Local Rules, former rule 21.11(a).) This rule, 

however, applied only in juvenile matters, and is thus not applicable in this case. 

VI

Medical Injury Compensation Reform Act of 1975

Plaintiff contends certain provisions in the Medical Injury Compensation Reform 

Act of 1975 (MICRA) (Stats. 1975, 2d. Ex. Sess. 1975-1976, chs. 1, 2, pp. 3949-4007) 

are unconstitutional, as least as applied to “economically marginalized parties” like 

him.15 He fails to convince. 

15

 He raised similar arguments in a petition for writ of mandate filed on March 2, 2018. 

We denied the petition. (Scaccia v. Superior Court (C086598, petn. den. Mar. 15, 

2018).) 
40

The Legislature enacted MICRA in 197516 in response to “ ‘serious problems that 

had arisen throughout the state as a result of a rapid increase in medical malpractice

insurance premiums.’ ” (Chan v. Curran (2015) 237 Cal.App.4th 601, 607 (Chan).) 

“[T]he Legislature found that the high cost of medical malpractice insurance premiums 

was (1) threatening to curtail the availability of medical care in the state and (2) creating 

a situation in which patients, injured by medical malpractice, might well find that there 

was no liability insurance to cover the damages they had sustained. To meet those 

problems, the Legislature enacted a series of measures aimed at reducing medical 

malpractice insurance costs.” (Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 

930 (Roa).) These measures were designed to reduce the costs associated with

malpractice litigation by “ ‘revising a number of legal rules applicable to such 

litigation’ ” and “limiting the amount and timing of recovery” in such cases. (Chan, at 

p. 607.) 

MICRA applies to professional negligence actions against health care providers. 

Among other things, it: (1) caps the amount of noneconomic damages that are 

recoverable (Civ. Code, § 3333.2); (2) caps contingency fees (Bus. & Prof. Code,

§ 6146); (3) establishes a relatively short statute of limitations (Code Civ. Proc, § 340.5); 

(4) establishes procedures for the trial court to determine whether punitive damages may 

be alleged (Code Civ. Proc, § 425.13); and (5) requires the court to order that future 

damages be paid periodically rather than in a lump sum in certain circumstances (Code 

Civ. Proc., § 667.7). Plaintiff contends these provisions are unconstitutional. 

16 Defendant has filed a request that we take judicial notice of recent amendments to 

MICRA (Assem. Bill No. 35 (2021-2022 Reg. Sess.)) and portions of its legislative 

history. Finding the legislative amendment and history irrelevant to our analysis or 

decision, we decline to do so and hereby deny his request for judicial notice.
41

Defendants argue we should not reach Plaintiff’s arguments about MICRA 

because most of the provisions he challenges were never actually applied to him. For 

example, he was not awarded damages, and was thus not affected by the provisions in 

MICRA, capping or limiting damages. However, one of Plaintiff’s primary arguments is 

that MICRA’s caps and limits on damages and continency fees combine to dissuade 

attorneys from taking medical malpractice cases on a contingency fee basis because the 

potential recovery is too low to make such cases worth their time, which effectively 

forces economically marginalized parties, like him, to proceed pro. per. and impinges on 

their right to retain competent counsel. So understood, we find Plaintiff sufficiently 

aggrieved to raise this issue on appeal, and choose to address it. (See Roa, supra,

37 Cal.3d at p. 925, fn. 4 [finding the plaintiffs had standing to challenge MICRA’s cap 

on contingency fees even though enforcement of cap preserved more money for them, 

because they argued cap disincentivized attorneys from pursuing additional recovery, and 

concluding the “plaintiffs should not be deprived of the opportunity to pursue this 

substantive argument on appeal by a threshold determination that they not ‘aggrieved’ as 

a matter of law”].) 

Most of MICRA’s provisions have survived repeated legal challenges, and 

Plaintiff presents no reasoned argument why we should depart from this long line of 

authority. 

For example, MICRA capped noneconomic damages at $250,000 for almost 50 

years, with no adjustment for inflation.17 The cap was upheld by our Supreme Court in 

Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 164, and it has been upheld 

numerous times since then. (See Chan, supra, 237 Cal.App.4th at pp. 605-607 

[collecting cases].) Plaintiff cites the dissenting opinion in Fein to support his argument 

17

 Effective January 1, 2023, the Legislature amended MICRA to substantially increase 

the cap and to adjust it for inflation.
42

that the cap is unconstitutional, “but dissenting opinions are not binding precedent.” 

(People v. Lopez (2012) 55 Cal.4th 569, 585.) 

Plaintiff cites the proposition that “the constitutionality of a statute is not 

determined once and for all by a decision upholding it. A change in conditions may 

invalidate a statute which was reasonable and valid when enacted.” (Perez v. Sharp

(1948) 32 Cal.2d 711, 737 (conc. opn. of Carter, J.).) Plaintiff argues the insurance 

premium crisis that led to MICRA’s enactment no longer exists, and it is thus appropriate 

for us to reconsider the constitutionality of the cap on noneconomic damages due to 

changed circumstances. In Chan, supra, 237 Cal.App.4th 601, the court considered the 

same argument, and rejected it, holding both that it was the exceedingly rare case that 

justified striking down a law that had previously been upheld, and that the plaintiff failed 

to demonstrate circumstances had totally changed since MICRA’s enactment. (Chan, at 

pp. 613-621.) Plaintiff gives us no reason to depart from Chan’s thorough and wellreasoned consideration of this issue. 

Finally, Plaintiff notes that other states’ courts have struck down caps on 

noneconomic damages similar to MICRA’s cap on the ground that they deprive plaintiffs 

of the right to a trial by jury. (See, e.g., Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt

(Ga. 2010) 691 S.E.2d 218, 221-224; Watts ex rel. Watts v. Lester E. Cox Med. Ctrs.

(Mo. 2012) 376 S.W.3d 633, 640; see also Siebert v. Okun (N.M. 2021) 485 P.3d 1265, 

1277, fn. 3 [collecting cases].) This may be true, but it is irrelevant, because our 

Supreme Court has upheld MICRA’s cap on noneconomic damages, and we are bound by 

its decisions, not the decisions of other states’ courts. (Loshonkohl v. Kinder, supra, 

109 Cal.App.4th at p. 517.) 

Plaintiff’s challenges to other provisions in MICRA fail for similar reasons.
43

MICRA’s cap on contingency fees was upheld by our Supreme Court in Roa, 

supra, 37 Cal.3d at p. 923.18 Plaintiff never discusses Roa, much less explains how or 

why we have authority to disregard it. To the extent he makes another changed 

circumstances argument, we reject it for the reasons stated in Chan, supra, 

237 Cal.App.4th 601. 

MICRA’s statute of limitations is “three years after the date of injury or one year 

after the plaintiff discovers, or through the use of reasonable diligence should have 

discovered, the injury, whichever occurs first.” (§ 340.5.) The provision has been upheld 

against constitutional challenge, (see Kite v. Campbell (1983) 142 Cal.App.3d 793, 800-

801), and, in any event, none of Plaintiff’s claims were barred by MICRA’s statute of 

limitations, and he thus lacks standing to challenge it. 

MICRA provides a claim for punitive damages may not be included in a medical 

malpractice complaint unless and until the plaintiff files a motion seeking to add such a 

claim, and supports the motion with affidavits that establish “a substantial probability that 

the plaintiff will prevail on the claim.” (§ 425.13, subd. (a).) The motion must be filed 

“within two years after the complaint . . . is filed or not less than nine months before the 

date the matter is first set for trial, whichever is earlier.” (Ibid.) This provision was 

upheld against a right to jury trial challenge in Aquino v. Superior Court (1993) 

21 Cal.App.4th 847. Plaintiff cites no legal authority to support his argument that this 

provision unconstitutionally discriminates against the economically marginalized, and we 

thus reject it. (Woods, supra, 167 Cal.App.4th at p. 677 [“A court need not consider an 

issue where reasoned, substantial argument and citation to supporting authorities are 

lacking”].)

18

 This cap was also increased effective January 1, 2023.
44

Finally, MICRA provides that, on the request of either party and in certain 

circumstances, the court shall order that future damages be paid by periodic payments 

rather than in a lump sum. (§ 667.7, subd. (a).) This provision has been upheld against 

equal protection, due process and right to jury trial challenges. (American Bank & Trust 

Co. v. Community Hospital (1984) 36 Cal.3d 359.) Again, Plaintiff cites no legal 

authority to support his argument that this provision is unconstitutional, and we thus 

reject it. (Woods, supra, 167 Cal.App.4th at p. 677.)

VII

Leave to Amend

Plaintiff complains the trial court improperly denied his numerous requests to file 

an amended complaint.19 Based on our review of the index of the appellant’s appendix, 

it appears Plaintiff filed no fewer than 10 motions to amend or motions for 

reconsideration of orders denying leave to amend. The court denied most of these 

motions (although it did grant his request “to amend defendants’ names and for no other 

purpose”). Plaintiff contends that the trial court “improperly denied amendments,” but he 

does not clearly identify which rulings or orders he challenges on appeal, and, as noted 

numerous times, it is not our job to serve as Plaintiff’s backup counsel or cull through the 

record to find support for undeveloped arguments. (Okorie, supra, 14 Cal.App.5th at 

p. 600.) 

19

 We note that Plaintiff does not challenge the trial court’s order sustaining Defendants’ 

demurrers to all claims except the wrongful death claim with leave to amend, and he does 

not challenge the trial court’s order dismissing those claims because he failed to file an 

amended complaint within the time allowed. Although he mentions in passing that some 

claims were “properly pled” or “erroneously dismissed on demurrer,” we need not, and 

do not, address “ ‘lurking’ ” arguments that are not clearly presented under a heading. 

(Imagistics Internat., Inc. v. Department of General Services, supra, 150 Cal.App.4th at 

p. 593, fn. 10; see also Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th

1826, 1830-1831, fn. 4 [“The failure to head an argument as required by California Rules 

of Court, rule 15(a), constitutes a waiver”].)
45

In his brief, Plaintiff specifically identifies only one motion to amend—the one 

filed on August 29, 2016. The trial court denied the motion by order dated November 28, 

2016,

20 noting, “1. On April 29, 2015, and August 13, 2015, this Court issued Orders 

sustaining [Defendants’ demurrers], both with leave to amend. [¶] 2. Notwithstanding 

the Court’s Orders, Plaintiff did not seek to file an Amended Complaint until over one 

year later . . . . [¶] 3. Plaintiff was given over a year’s time to file an amended 

complaint. [¶] 4. In the absence of new facts or new law, the Court finds that Plaintiff’s 

delay to file an amended complaint is inexcusable.”

Section 473 provides, “The court may, in furtherance of justice, and on any terms 

as may be proper, . . . in its discretion, after notice to the adverse party, allow, upon any 

terms as may be just, an amendment to any pleading . . . .” (§ 473, subd. (a)(1).) 

“Motions for leave to amend are directed to the sound discretion of the judge . . . . 

[Citation.] However, the court’s discretion will usually be exercised liberally to permit 

amendment of the pleadings. [Citations.] The policy favoring amendment is so strong 

that it is a rare case in which denial of leave to amend can be justified.” (Howard v. 

County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) A trial court’s decision 

denying leave to amend is reviewed for an abuse of discretion, and it is Plaintiff’s burden 

to demonstrate abuse. (Leader v. Health Industries of America, Inc. (2001) 

89 Cal.App.4th 603, 612.) Although it is Plaintiff’s burden to demonstrate the trial court 

abused its discretion in denying leave to amend, he offers no argument on the issue. 

Instead, he simply states he sought leave to amend, and the court denied the amendment 

as untimely despite finding no prejudice to Defendants. Despite the strong policy 

20

 The trial court initially issued a tentative ruling granting the motion because 

“Defendants have not adequately demonstrated that they will suffer any prejudice from 

amendment. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.)” At the hearing 

on the demurrer, however, the trial court vacated the tentative ruling, and denied the 

motion because “Plaintiff was given time to amend complaint but didn’t until 9-16-16.”
46

favoring amendment, “ ‘The law is well settled that a long deferred presentation of the 

proposed amendment without a showing of excuse for the delay is itself a significant 

factor to uphold the trial court’s denial of the amendment. [Citation.]’ [Citation.] ‘The 

law is also clear that even if a good amendment is proposed in proper form, unwarranted 

delay in presenting it may—of itself—be a valid reason for denial.’ ” (Id. at p. 613.) 

With no reasoned argument from Plaintiff on the issue, he fails to rebut the presumption 

that the trial court’s order is correct. (Jameson, supra, 5 Cal.5th at pp. 608-609.) 

In addition to identifying the August 29, 2016, motion for leave to amend, Plaintiff 

also notes, “In 2020, the judge denied various amendments including clarifications to 

facts-claims by citing the 2016 denial with prejudice and erroneously claiming technical 

flaws (16 AA 12090-12718, 20 AA 14663-14669, 14444-14447, 14449-14586, 22 AA 

15681-15684; 23 AA 16849).” That is the sum total of Plaintiff’s arguments about 

“various” other denied motions to amend.21 The cited portions of the record include (1) a 

motion to amend filed February 28, 2020, and the order denying that motion (along with 

a tentative ruling denying the motion and a minute order taking the motion under 

submission), and (2) a motion to amend filed July 10, 2020, and the order denying that

motion. Plaintiff does not discuss either the contents of the motions or the court’s orders 

denying the motion, and thus fails to affirmatively demonstrate the trial court abused its 

discretion in denying leave to amend. (Jameson, supra, 5 Cal.5th at pp. 608-609.) 

21

 He also cites, albeit with no discussion, a motion he filed on October 26, 2020, 

seeking leave to amend to add his brother Alan as a nominal defendant. Plaintiff does not 

explain how his request to add his brother as a defendant is relevant to this appeal, which 

concerns the judgment entered in favor of Defendants Dr. Kennedy and Sutter. 
47

VIII

Monetary Sanctions

Plaintiff asks us to “Reverse Monetary Sanctions.” He states the court “sanctioned 

the homeless Plaintiff $2,780,” and he believes this sanction was “unjust,” but he gives us 

no information about why he was sanctioned or the circumstances surrounding the 

sanction. He also states he was “unjustly taxed costs,” and “[c]osts for the ‘successful’ 

MSJs should be reversed,” but he provides us with no other information about these 

costs, and no citation to authorities. With no “reasoned, substantial argument and citation 

to supporting authorities” on this issue, we need not consider it. (Woods, supra, 

167 Cal.App.4th at p. 677.) 

IX

Venue

Plaintiff’s final argument is this: “After six judges, a new venue is appropriate. 

Abusive discovery tactics/judging, refusals to grant continuances and rule on discovery 

(e.g., 9 AA7783-7879) unjustly ran the clock (CCP § 583.310) requiring guidance to 

prevent Plaintiff from miscalculating remaining time (16 AA12461-12463).” We reject 

this argument because it is “perfunctorily asserted without legal development.” 

(Cameron v. Sacramento County Employees’ Retirement System (2016) 4 Cal.App.5th

1266, 1282.) 
48

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(5).)

 /s/

EARL, J.

We concur:

 /s/

ROBIE, Acting P. J.

 /s/

DUARTE, J.