Zulli v. Graham CA2/6

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

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

GEOFFREY GRAHAM, M.D.,

Defendant and Respondent.

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

1 "EMTALA" is an abbreviation for the federal Emergency Medical Treatment and Labor Act. (42 U.S.C. § 1395dd.)

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