1 Filed 6/5/14 Zulli v. Ghanem CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for pu blication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered publi shed for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BRIAN ZULLI,
Plaintiff and Appellant,

v.
BASSAM GHANEM, M.D.,
Defendant and Respondent. 2d Civil No. B250328 (Super. Ct. No. 56- 2011-00402117-CUMM-SIM) (Ventura County)

Brian Zulli, proceeding in propria pers ona, appeals from a judgment of dismissal entered after the trial court sustained, with out leave to amend, the demurrer of Bassam Ghanem, M.D., respondent, to appellant's s econd amended complaint. The 202-page complaint alleged 11 causes of action. Beca use appellant's opening brief completely fails to comply with the rules of appellate procedure (ru les), we deem the appeal to be
abandoned and dismiss it.
This is the second time that we have di smissed an appeal filed by appellant for failure to comply w ith the rules. Last year we dismissed the appeal in Zulli v. Graham (June 27, 2013, Ventura Super. Ct. No. 56 -2011-00402116-CU-MM -SIM) B242729. In
Graham appellant was also appealing from a judgme nt of dismissal entered after the trial
court sustained a demurrer without leave to amend. Both the instant case and Graham arose from the death of appellant's moth er which was allegedly due to medical malpractice. As Appendix A to this opinion, we attach a copy of the Graham opinion,2 which we judicially notice. (Evid. C ode, §§ 452, subd. (d), 459, subd. (a); Jay v. Mahaffey (2013) 218 Cal.App.4t h 1522, 1530, fn. 7.) Standard of Review "In reviewing a judgment following the su staining of a demurrer without leave to amend, we decide de novo whet her the complaint states facts sufficient to state a cause of action. [Citation.] We treat the demurrer as admitting all facts properly pleaded, but we
do not assume the truth of cont entions, deductions or conclusions of law. [Citation.] If we agree the complaint does not state a cause of action, we review the denial of leave to amend for an abuse of discretion. [Citation.]" ( Holland v. Jones (2012) 210 Cal.App.4th 378, 381.) Rules of Appellate Procedure " 'A judgment or order of the lower cour t is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "To demonstrate error, appellant must present meaningful legal analysis supported by citations to auth ority and citations to facts in the record th at support the claim of error. [Citations.]" ( In re S.C. (2006) 138 Cal.App.4th 396, 408.) "When an issue is unsupported by pe rtinent or cognizable legal argument it may be deemed abandoned and discussion by th e reviewing court is unne cessary. [Citations.]" ( Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) "Hence, conclusory claims of error will fail." ( In re S.C. , supra , 138 Cal.App.4th at p. 408.) The California Rules of Court provide: "An appellant's opening brief must . . . [p]rovide a summary of the significant fact s limited to matters in the record." ( Id ., rule 8.204(a)(2)(C).) Each factual reference must be supported "by a citation to the volume and page number of the record where the matter appears." ( Id ., rule 8.204(a)(1)(C).) "[Appellant] is not exempt from the fore going rules because he is representing himself on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citation.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consider ation than other litigants and attorneys.3 [Citation.]' [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure. [Citations.]" ( Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Discussion Appellant's opening brief completely fails to comply with th e rules. Appellant omits a summary of the significant facts with supporting citations to the record. The statement of facts and argument sections of th e brief are identical. The argument consists of conclusory allegations without any factual or legal analysis. "We are not required to search the record to ascertain whether it contains support for [appellant's] contentions. [Citation.] . . . [¶] . . . [I]t is not this c ourt's function to serve as [appellant's] backup ap pellate counsel." ( Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; see also In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 830 ["We are not bound to deve lop appellants' arguments for them"]; Niko v.
Foreman (2006) 144 Cal.App.4th 344, 368 ["One cannot simply say the [trial] court erred, and leave it up to the appella te court to figure out why"].)
In a similar situation in Berger v. Godden (1985)163 Cal.App.3d 1113, the court concluded: "[I]t is appropriate . . . to deem the appeal abandoned an d to dismiss it. . . . Appellant's [opening] brief . . . simply failed to make any arguments to support any theory of error." ( Id ., at p. 1120, fn. omitted.) The cour t continued: "[A]ppellant's failure to present any pertinent or intelligible lega l argument in his opening brief constitutes an abandonment of the appeal . . . . In this circumstance, dism issal of the appeal, with no
consideration on the merits as to the correctness of the judgment . . . from which the appeal is taken, is the proper disposition." ( Ibid .)
In Berger the original opening brief was struck for failure to comply with the rules. The appellate court deemed the appeal to be abandoned after the second brief also failed to comply with the rules. Here, on th e other hand, there is no second brief because appellant's opening brief was not struck. But this is a distinction without a difference.
The Berger court's holding is not limited to second briefs: "[W]e . . . hold that failure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an4 opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal." ( Berger v. Godden
, supra , 163 Cal.App.3d at p. 1119.) The Berger court noted: "Although we are considering a se cond brief in this case, we know of nothing to preclude an appeal from being deemed aban doned by virtue of an initial brief's failure to present pertinent or comprehensible argument." ( Id ., at p. 1120, fn. 7.)
In view of our dismissal of a ppellant's previous appeal in Zulli v. Graham
, supra , for failure to comply w ith the rules, it is particularly ap propriate for us to exercise our
discretion to dismiss the instant a ppeal for the same reason. In Graham appellant was
forewarned that his failure to comply with the rule s in a future appeal would result in the dismissal of that appeal. Moreover, it appear s that appellant knew that his opening brief in the instant appeal did not co mply with the rules. In the first paragraph of the brief, appellant states: "The Court should grant the Appellant the widest latitude to allow him to have his day in Court. The Court shou ld consider the rights of the Appellant over simple rule following ." (Italics added.) Disposition The appeal is dismissed. Responde nt shall recover his costs on appeal.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.1 APPENDIX A

Filed 6/27/2013 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BRIAN ZULLI,
Plaintiff and Appellant,

v.
GEOFFREY GRAHAM, M.D.,
Defendant and Respondent. 2d Civil No. B242729 (Super. Ct. No. 56- 2011-00402116-CUMM-SIM) (Ventura County)

Brian Zulli, proceeding in propria pers ona, appeals from a judgment of dismissal entered after the trial court sustained, with out leave to amend, the demurrer of Geoffrey Graham, M.D., respondent, to appellant's se cond amended complain t. The complaint alleged two causes of action. The firs t was entitled "CRIMINA L NEGLIGENCE WITH
BATTERY / MEDICAL MAL PRACTICE WITH VIOLATIONS OF EMTALA." 1 (Bold omitted.) The second cause of action wa s for wrongful death. Because appellant's opening brief completely fails to comply with the rules of appellate procedure, we deem the appeal to be abandoned and dismiss it. Standard of Review

1 "EMTALA" is an abbreviation for the fede ral Emergency Medical Treatment and Labor Act. (42 U.S.C. § 1395dd.)2 "In reviewing a judgment following the su staining of a demurrer without leave to amend, we decide de novo whet her the complaint states facts sufficient to state a cause of action. [Citation.] We treat the demurrer as admitting all facts prope rly pleaded, but we
do not assume the truth of cont entions, deductions or conclusions of law. [Citation.] If we agree the complaint does not state a cause of action, we review the denial of leave to amend for an abuse of discretion. [Citation.]" ( Holland v. Jones (2012) 210 Cal.App.4th 378, 381.) Rules of Appellate Procedure " 'A judgment or order of the lower cour t is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "To demonstrate error, appellant must present meaningful legal analysis supported by citations to auth ority and citations to facts in the record th at support the claim of error. [Citations.]" ( In re S.C. (2006) 138 Cal.App.4th 396, 408.) "When an issue is unsupported by pe rtinent or cognizable legal argument it may be deemed abandoned and discussion by th e reviewing court is unne cessary. [Citations.]" ( Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 69 1, 699 -700.) "Hence, conclusory claims of error will fail." ( In re S.C. , supra , 138 Cal.App.4th at p. 408.) The California Rules of Court (Rules) provi de: "An appellant's opening brief must . . . [p]rovide a summary of the significant fact s limited to matters in the record." (Rule 8.204(d)(C).) Each factual refe rence must be supported "by a citation to the volume and page number of the record where the ma tter appears." (Rul e 8.204(a)(1)(C).) The Rules also require that a brief "[s]tate each point under a separate heading or subheading summari zing the point . . . ." (Rule 8.20 4(a)(1)(B).) "This is not a mere technical requirement; it is 'designed to light en the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining th e rule of law to apply may be advised, as they read, of the exact question under cons ideration, instead of being compelled to
extricate it from the mass. ' [Citations.]" ( In re S.C. , supra , 138 Cal.App.4th at p. 408.)3 "The failure to head an argument as re quired by California Rules of Court, rule [8.204(a)(1)(B)] constitutes a waiver. [Citations.]" ( Opdyk v. California Horse Racing
Bd. (1995) 34 Cal.App.4t h 1826, 1830, fn. 4.) "[Appellant] is not exempt from the fore going rules because he is representing himself on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citation.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consider ation than other litigants and attorneys. [Citation.]' [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure. [Citations.]" ( Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Discussion Appellant's opening brief completely fails to comply with th e rules of appellate procedure. Appellant omits a summary of th e significant facts with supporting citations to the record. He has not "[ s]tate[d] each point under a se parate heading or subheading summarizing the point . . . ." (Rule 8.204(a) (1)(B).) The brief consists of conclusory allegations without any factual or legal analysis. Although appellant cites legal authorities, he does not explain how these authoritie s apply to this case. "We are not required to search the record to ascertain whether it contains support for [appellant's] contentions. [Citation.] . . . [¶] . . . [I]t is not this c ourt's function to serve as [appellant's] backup ap pellate counsel." ( Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; see also In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 830 ["We are not bound to deve lop appellants' arguments for them"]; Niko v.
Foreman (2006) 144 Cal.App.4th 344, 368 ["One cannot simply say the [trial] court erred, and leave it up to the appella te court to figure out why"].) "Consequently, it is appropriat e for this court to deem th e appeal abandoned and to dismiss it. . . . Appellant's [opening] brief . . . simply failed to make any arguments to support any theory of error." ( Berger v. Godden (1985)163 Cal.App. 3d 1113, 1120, fn. omitted.) "[A]ppellant's failure to present an y pertinent or intelligib le legal argument in his opening brief constitutes an abandonment of the appeal . . . . In this circumstance,4 dismissal of the appeal, with no consideration on the merits as to the correctness of the judgment . . . from which the appeal is taken, is the pr oper disposition." ( Ibid .) 2
Even if we were to consider the merits of the appeal, appellant would not prevail. His causes of action are based on the allege dly negligent medical care of his mother, Sylvia Zulli. Because of the negligent care, "Sylvia Zulli su ffered a stroke . . . and died on May 13, 2010." Appellant su ed respondent, four other doc tors, a hospital, and various medical groups. 3 The complaint alleges that all of the defend ants "failed to prescribe blood thinners Cumidin [Coumadin] when [Sylvia was] discharged [from hospital] on March 25, 2010." From March 12 through March 25, and Marc h 29 through March 30, 2010, defendants also "[f]ailed to screen a nd provide medical treatment of an urgently needed ERCP [endoscopic retrograde cholangiopancreatogram ] Procedure / a closed bial [bile] duct, a life or death emergency." On March 29, 2010 , Sylvia had a stroke and was rushed to Paso Robles Hospital. "Defendants failed to provide medical treatment for a stroke on March 29, 30, 2010."

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

3 In a separate appeal in another case arisi ng out of Sylvia's allegedly negligent medical care and death, we affirmed a judgment of dismissal entered after the trial court sustained, without leave to ame nd, the defendant's demurrer. ( Zulli v. Mora (June 6, 2013) B242702.)5 The following allegations in th e complaint are the only ones that specifically apply to respondent: "On March 30, 2010, [after Sylvia had suffered a stroke and had been admitted to Paso Robles Hospita l, respondent] told [appellant ] he refused to treat Sylvia Zulli [and that] she is going to die. He said Sylvia Zulli has brain cancer, liver cancer, lung cancer, kidney cancer and pancreatic canc er. [Appellant] had Sylvia Zulli brought to Simi Valley Hospital. [Respondent] calle d Elder Abuse and Simi Valley Hospital and Cedars Hospital [correct name is Cedars-Sin ai Medical Center] trying to keep Sylvia Zulli from having medical treatm ent provided that would sa ve her life." Appellant alleged that Sylvia was admitted to Simi Valley Hospital on March 30, 2010, the same day that respondent refused to treat her at Pa so Robles Hospital. "Doctor Yu from Simi Valley Hospital said to [appella nt that] Sylvia Zulli is suffe ring a stroke due to no blood thinners. Sylvia is put on Lovenox [a blood th inner] immediately." The complaint's allegations are insufficient to state a cause of action against respondent. The complaint does not allege that Sylvia was under respondent's care before March 30, 2010. Thus, he could not have been responsibl e for the failure to prescribe blood thinners when Sylvia was discharged from the hospital on March 25,
2010. Moreover, the complaint does not state facts showing a causal connection between respondent's alleged refusal to treat Sylvia on March 30, 2010, and her death 44 days later on May 13, 2010. On March 30 appellant had Sylvia discharged from Paso Robles Hospital and placed in Simi Valley Hospital, where Dr. Yu immediately began treating her with blood thinners for the stroke. Appe llant does not explain how this short delay in treatment contributed to Sylvia's death.
The lack of a causal connection was th e trial court's reason for granting the demurrer: "[D]espite being told what needed to be addressed, [appellant] has failed to set
forth a clear causal connection between the acts and or omissions of [respondent] and the stroke/death of Sylvia." The trial court was correct: "[W]hen . . . ' "the pleaded facts of negligence and injury do not naturally give rise to an inferenc e of causation[,] the plaintiff must plead specific facts affording an inference the one caused the others." '6 [Citation.] That is, the plaintiff must allege facts, albeit as succinctly as possible, explaining how the conduct caus ed or contributed to the injury. [Citations.]" ( Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78-79.) In addition, appellant failed to allege fact s sufficient to state a cause of action for "criminal negligence with batte ry." "The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented." ( Cobbs v. Grant (1972) 8 Cal.3d 229, 240.) Appellant did not allege that respondent had performed surgery on Sylvia. He alleged that respondent had refused to
treat her. Disposition The appeal is dismissed. Responde nt shall recover his costs on appeal.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.7 Rebecca S. Riley, Judge Superior Court County of Ventura

________________ ______________

Brian Zulli, in pro per, Appellant.

Bertling & Clausen; Steve H. Shlens, for Respondent.1 Rebecca S. Riley, Judge Superior Court County of Ventura

________________ ______________

Brian Zulli, in pro per, Appellant.

Hertzfeld & Rubin, Michael A. Zuk, Vadim Braslavsky, for Respondent.