Zulli v. Moghimi CA2/6

Filed 8/25/14 Zulli v. Moghimi CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BRIAN ZULLI, 2d Civil No. B253429 (Super. Ct. No. 56-2011-402117- Plaintiff and Appellant, CU-MM-SIM) (Ventura County) v.

ROBERT MOGHIMI, M.D.,

Defendant and Respondent.

Brian Zulli, proceeding in propria persona, appeals from the trial court's order striking his "second amended complaint as to [respondent] Robert Moghimi[,] MD."1 The 202-page complaint consisted of 11 causes of action, all of which arose from the death of appellant's mother. Appellant alleged that her death was due to medical malpractice. The second amended complaint originally named respondent as one among many defendants. The trial court dismissed the complaint as to respondent without prejudice. The motion to strike was granted after appellant had amended the second amended complaint to add respondent as a "Doe" defendant. Appellant contends that the trial court erred because the previous dismissal was without prejudice.

1 The order is appealable. (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 878; Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 369- 370.)

Because appellant's opening brief completely fails to comply with the rules of appellate procedure (rules), we deem the appeal to be abandoned and dismiss it. This is the third time that we have dismissed an appeal filed by appellant for failure to comply with 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. This year we dismissed the appeal in Zulli v. Ghanem (June 5, 2014, Ventura Super. Ct. No. 56-2011-00402117-CU-MM-SIM) B250328. We judicially notice both the Graham and Ghanem opinions. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1530, fn. 7.) Procedural Facts The original complaint, which named respondent as a defendant, was filed on August 12, 2011. In October 2012 the second amended complaint, also naming respondent as a defendant, was dismissed as to respondent without prejudice. The dismissal order is not included in the record on appeal. According to a minute order of December 4, 2013, the dismissal was for appellant's "failure to file a proof of service." On June 21, 2013, appellant amended the second amended complaint to add respondent as a "Doe" defendant. Respondent demurred to the second amended complaint. The court did not rule on the demurrer. Pursuant to Code of Civil Procedure sections 435 and 436, respondent filed a motion to strike the amendment naming him as a Doe defendant.2 In granting the motion, the trial court reasoned: "A Doe amendment may be used, per [section] 474, when the plaintiff is truly ignorant of the name of the Defendant. In this instance, [appellant] was not ignorant of the name of [respondent] as [he] was named in the original complaint filed on 8- 12-11. After the dismissal [as to respondent in October 2012, appellant] may not now bring [him] in by way of a Doe amendment." Standard of Review "An order striking all or part of a pleading under Code of Civil Procedure section 435 et seq. is reviewed for abuse of discretion. [Citation.] This means that the reviewing court