Walsh v. McBride

Filed 8/17/07 Walsh v. McBride CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed.

Plaintiff Michael Walsh appeals a judgment in favor of defendant Michael McBride following the trial court's grant of McBride's motion for judgment on the pleadings. Walsh's contention on appeal, though unclear, appears to be that the trial court improperly granted McBride's demurrers and motion for judgment on the pleadings.

FACTUAL AND PROCEDURAL BACKGROUND

Walsh began treatment with McBride, a dentist, in January 2004 for a dental implant. The implant work was completed in February, but by June the implant became loose. Walsh returned to McBride to have the tooth repaired, but because he felt he was being harassed by McBride, left without having the tooth fixed.

Walsh sued McBride for breach of contract, negligence, intentional tort, defamation, and fraud. In response, McBride filed a motion to strike Walsh's complaint or, alternatively, certain portions of it, and a demurrer to each cause of action. The court granted the motion to strike paragraphs 4 through 13 of the complaint and sustained the demurrer with 10 days' leave to amend, ordering Walsh to allege relevant facts supporting each element of each cause of action pleaded in his complaint.

Walsh filed an amended complaint, but it did not differ substantively from the original complaint. Walsh wrote the words "Amended Pleading" at the top of the cover page of the original complaint, removed paragraphs 4 through 13, and added an eighth cause of action for slander, but did not make any additional allegations or include any additional facts regarding the slander cause of action. McBride filed a demurrer to the amended complaint, to which Walsh filed an untimely answer, which the court did not consider. The court sustained the demurrer as to all causes of action without leave to amend except Walsh's defamation claim, although the court had sustained the demurrer to the defamation claim in the original complaint. Because of the discrepancy, the court modified the tentative ruling to provide that the demurrer to the defamation cause of action was overruled without prejudice to McBride filing a motion for judgment on the pleadings.

McBride filed a motion for judgment on the pleadings to Walsh's remaining cause of action for defamation. The court did not consider Walsh's late opposition to the motion and granted McBride's motion without leave to amend. The notice of entry of judgment was served on October 24, 2006. Walsh timely appealed.

DISCUSSION

Walsh does not argue in his opening brief that the trial court erred below. He presents various headings and subheadings throughout his brief, but they do not summarize his points, and he does not provide any argument to support his points. Moreover, Walsh's brief contains many factual assertions outside the record on appeal, and the only authority he advances is limited to the last two pages of his brief, in which he cites to cases regarding contract formation--although the existence or validity of a contract between the parties is not at issue in this appeal. We returned Walsh's brief unfiled once for noncompliance with the California Rules of Court, and his brief still suffers the same infirmities.

California Rules of Court, rule 8.204, subdivision (a)(1)(B) requires a brief to "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority . . . ." Statements of fact not part of, or supported by citations to, the record on appeal are improper and cannot be considered on appeal. (Cal. Rules of Court, rule 8.204, subd. (a)(1)(C).) "When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' [Citation.]" (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Moreover, the "failure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, at the discretion of the court, be deemed an abandonment of the appeal . . . ." (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)

We are not required to search the record to determine whether it contains support for Walsh's contentions, and we will not develop Walsh's arguments for him. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) Because Walsh's opening brief does not contain any intelligible, pertinent legal argument or citations to the appellate record to support his assertions of fact and law, we consider his contentions on appeal waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.)

We note Walsh filed this appeal in propria persona. However, appearing in propria persona does not exempt Walsh from compliance with established appellate rules. (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247 [litigants appearing in propria persona must follow the same procedural rules as attorneys].) We conclude Walsh has not carried his burden on appeal to show the trial court erred in granting Dr. McBride's demurrers and motion for judgment on the pleadings.

DISPOSITION

The judgment is affirmed. McBride is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

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