Hudson v. Debow CA4/2

Filed 5/31/23 Hudson v. Debow CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
ARCHER HUDSON,
Plaintiff and Appellant, E078375
v. (Super.Ct.No. CIVDS1714152)
D'ARTAGNAN NATHAN DEBOW et OPINION
al.,
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. Bryan Foster,
Judge. Affirmed.
Archer Hudson, in pro. per., for Plaintiff and Appellant.
La Follette, Johnson, De Haas, Fesler & Ames, Dennis K. Ames, Michael D. Reid,
Melissa E. Fischer, Stephen J. Guichard for Defendants and Respondents Lester Mohr,
M.D. and Jeff Quigley, M.D.
1
Plaintiff and appellant Archer Hudson (Plaintiff) appeals from the order issued by
the trial court entered on November 16, 2021, dismissing his Third Amended Complaint
(TAC) as to non-appearing defendants. Plaintiff filed suit against Loma Linda University
Health (Loma Linda), Kaushik Mukherjee, M.D. and DOES 1 through 30 for medical
negligence stemming from a laparoscopic sigmoidectomy surgery performed on his
bowels to remove blockages. Plaintiff claimed that as a result of Dr. Mukherjee’s
negligence during surgery and postoperative care rendered by staff at Loma Linda, he
suffered kidney damage, incontinence and erectile dysfunction (ED). The trial court
granted the motion for summary judgment brought by Loma Linda and Dr. Mukherjee,
the only responding defendants, on the ground that Plaintiff had failed to establish a
triable issue of fact on his medical negligence claim. Plaintiff appealed and this court
upheld the trial court’s ruling in Archer Hudson v. Loma Linda University Health (April
29, 2021, E073636), [non.pub opinion] (Opinion).)
The trial court addressed the remaining defendants named in the TAC by issuing
an order to show cause that the TAC would be dismissed against all non-appearing
defendants unless Plaintiff showed proof of service on the remaining defendants. These
other defendants that are the subject of the instant appeal are D’Artagnan Debow M.D.,
Patricia Dawley, Linneta Tasker, Lester Mohr, M.D. and Jeff Quigley, M.D.
(collectively, Defendants).1 The trial court dismissed the TAC against Defendants based
on Plaintiff failing to properly serve them within three years as required by Code of Civil
1 We note that Dr. Quigley and Dr. Mohr are the only defendants who filed a
response in this appeal.
2
Procedure section 583.210. The trial court also denied Plaintiff’s motion for leave to file
a fourth amended complaint.
On appeal, Plaintiff contends (I) summary judgment was improper as to Melissa
Sasse, Shandra Slate and Dolores Wright; (II) Defendants carried out concealment-fraud
on the court; (III) Plaintiff’s case was never heard on its merits due to concealment and
fraud; (IV) Plaintiff was not given due process of law and a fair hearing; (V) Defendants
committed acts of RICO racketeering; (VI) He was denied a medical expert; (VII) It was
impossible for Plaintiff to find a medical expert to oppose summary judgment; (VIII)
synergism; (IX) his is a case of first impression; (X) his civil rights as to Medicare/as a
medical recipient were interfered with; (XI) the doctrine of respondeat superior requires
he be allowed to appeal the denial of his motion to file a fourth amended complaint; (XII)
Defendants did not comply with the standard of care; and (XIII) any delays in his service
of process should be forgiven.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY2
Plaintiff, who was 71 years old at the time, went to Loma Linda on June 25, 2016,
complaining of abdominal pain and that he had not had a bowel movement for four days.
A CT scan of his abdomen was requested and revealed a narrowing of the sigmoid colon
with distention of the proximal colon. On June 28, 2016, he underwent a laparoscopic
sigmoidectomy with primary anastomosis and lysis of adhesions. Surgery was performed
2 We provide only a brief summary of the facts taken from the Opinion.
3
by Dr. Mukherjee and he was assisted by Dr. D’Artagnan Debow. Dr. Mukherjee
summarized the surgery, which included the use of an endo GIA stapler. The first load
misfired and resulted in the bowel being cut. The cut was fixed and there were no further
complications. Immediately after the surgery, regular bowel function took time to
normalize. When Plaintiff regained normal bowel function, he was ready to be
discharged. He was on a regular diet at the time of his discharge on July 12, 2016, and
was given wound care instructions. Home health care would be provided to help with
wound care. He was to return for an appointment in one week.
On July 20, 2016, Plaintiff had a follow-up appointment. He was doing well and
did not complain of any complications. He had a home-health nurse who continued to
care for his wound and it was recommended that he be provided continued wound care.
He was prescribed additional Oxycodone for pain. The incision wound was healing and
he was having regular bowel movements. He had another appointment on August 3,
2016. Plaintiff had no specific complaints. He had no problems with the wound. Bowel
movements had been loose to solid. He was eating well. The Oxycodone prescription
was refilled.
On August 17, 2016, seven weeks after the surgery, Plaintiff complained at a
follow-up appointment of alternating diarrhea and constipation. He occasionally had
shooting pains in his abdomen. It was recommended he stop taking the Oxycodone as a
possible side effect was alternating diarrhea and constipation.
On September 7, 2016, at a follow-up appointment, Plaintiff reported he was
eating a regular diet without any problems. His incision was completely healed and his
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pain was controlled without medication. No further home health care was required.
Plaintiff reported episodes of incontinence since the surgery but stated he had
experienced intermittent bowel incontinence following a stroke six years prior. Plaintiff
had expected it to be better after the surgery.
B. PROCEDURAL HISTORY
1. THIRD AMENDED COMPLAINT
Plaintiff’s original complaint was filed on July 25, 2017. Plaintiff named Loma
Linda, Dr. Mukherjee and DOES 1 through 30. The original complaint was dismissed
without prejudice and leave to amend after Loma Linda and Dr. Mukherjee filed a
demurrer. Plaintiff filed a first amended complaint on December 12, 2017. He named
Loma Linda, Dr. Mukherjee and DOES 1 through 30. The demurrer filed by Loma Linda
and Dr. Mukherjee to the second amended complaint was sustained in part and overruled
in part, with leave to amend. On April 3, 2018, the second amended complaint was filed
naming Loma Linda, Dr. Mukherjee and DOES 1 through 30. A demurrer filed by Loma
Linda and Dr. Mukherjee was sustained on July 12, 2018, with leave to amend.
On August 9, 2018, Plaintiff filed the TAC against Loma Linda, Dr. Mukherjee
and DOES 1 through 30. He insisted that as a result of the surgery, he had kidney
damage, incontinence of bladder and bowel and ED. Plaintiff’s causes of action included
negligence, intentional misrepresentation, “res ipsa loquiter” and negligent
misrepresentation. He named the parties as follows: Loma Linda, Dr. Mukherjee, Dr.
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Debow, Dr. Mohr, Dr. Quigley3, Shaunda Slaght (RN) and Dawley. Plaintiff alleged he
had added Dr. Quigley as DOE 3 on July 10, 2018, and Dr. Mohr as DOE 2 on the same
date.
On August 9, 2018, he made amendments to the TAC naming Slaght as DOE 11
and Dawley as DOE 12. He filed further amendments on September 4, 2018, naming
Dolores Wright as DOE 13, Linnetta Tasker as DOE 14, and Melissa Sasse as DOE 15.
He provided proof of service for the amendments to the TAC filed on August 9, 2018.
He served the TAC on attorney “M Fischer LaFollette Johnson.”4 Plaintiff also served
the amendments adding DOES 13 through 15 on Fischer.
A demurrer to the TAC was apparently filed by Loma Linda and Dr. Mukherjee.
It was sustained as to the second and third causes of action. The only remaining cause of
action against the named defendants was medical negligence.
3The record also shows Dr. Quigley referred to as “Do” but this designation
appears to be the type of medicine he practices and not his name. As such, when there is
reference to Do in the record, we will presume it is to Dr. Quigley.
4 This appears to reference Melissa E. Fischer who was an attorney employed by
the law firm LaFollette, Johnson, DeHaas, Fessler and Ames (hereinafter, LaFollette).
LaFollette has represented several of the defendants throughout this case.
6
2. SUMMARY JUDGMENT MOTION ON TAC, RULING AND FIRST
APPEAL5
Loma Linda and Dr. Mukherjee, who were represented by LaFollette, filed their
notice of motion and motion for summary judgment on the TAC on March 29, 2019
(Motion). The Motion was based on the fact that defendants complied with the standard
of care required with respect to Plaintiff’s care and to a reasonable degree of medical
probability, no act or omission by any of the defendants caused or contributed to
Plaintiff’s injuries. The Motion was based on the declaration of Dr. Moses J. Fallas, the
undisputed material facts and documentary evidence. Loma Linda and Dr. Mukherjee
argued the declaration from Dr. Fallas supported that the care and treatment of Plaintiff
was within the standard of care.
Plaintiff filed opposition to the Motion. He also provided his own separate
statement of undisputed material facts and exhibits. Plaintiff objected to Dr. Fallas’s
declaration because he was not present during the surgery, his opinions were hearsay and
he was not qualified. Plaintiff essentially repeated the facts and allegations from the
TAC. Plaintiff’s legal argument in the opposition was confusing, raising issues of
respondeat superior and res ipsa loquiter. In conclusion, Plaintiff claimed the attached
exhibits demonstrated a triable issue of fact that Loma Linda and their medical personnel
5 The record in this case contains some of the same documents submitted in case
No. E073636. Plaintiff has requested that we take judicial notice of the case. We will
take judicial notice of the record in the previous case. We will draw the facts of the
proceedings pertaining to the Motion and opposition filed by Plaintiff from our prior
Opinion.
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did not comply with the standard of care and that he suffered injuries. He requested that
the court deny the Motion. Attached to the opposition, Plaintiff included his own
declaration that he had personal knowledge of the facts and could testify if called as a
witness. He submitted three other exhibits, which include his medical records, laboratory
tests and a postoperative report prepared by Dr. Mukherjee.
Loma Linda and Dr. Mukherjee filed a reply to Plaintiff’s opposition. They
argued Plaintiff was required to show through the use of expert testimony that they
breached the standard of care and such breach of the standard of care caused his injuries.
Plaintiff had failed to provide an expert or any admissible evidence that would create a
triable issue of fact. The only evidence was the declaration of Dr. Fallas, which provided
that Loma Linda and Dr. Mukherjee complied with the standard of care required in their
treatment of Plaintiff. Plaintiff had failed to prove there was a triable issue of material
fact as to the standard of care and causation.
The Motion was granted on June 19, 2019. The trial court submitted its ruling on
June 17, 2019, which provided as follows: “After full consideration of the moving papers
and oral argument made by counsel at the time of the hearing, the Court finds that
moving defendants have shown by admissible evidence and reasonable inferences
therefrom that there is no triable issue of fact with respect to defendants. Defendants are
entitled to summary judgment as a matter of law as they complied with the standard of
care in their treatment of plaintiff, Archer Hudson and that no act or omission on their
part caused or contributed to the injury of plaintiff, Archer Hudson.” The Motion was
granted in favor of Loma Linda and Dr. Mukherjee.
8
Plaintiff filed his appeal in this court and we issued our Opinion on April 19,
2021. We found that the trial court properly concluded that Plaintiff’s failure to present
an expert was fatal to his claim of medical negligence. We further rejected his other
arguments as not being supported by the record, nor proper reference to the record or
legal authority.
3. RESOLUTION OF TAC FOR DEFENDANTS
Prior to the appeal, an order to show cause was issued regarding dismissal of all
non-appearing defendants and was to be heard on July 25, 2019. The matter was
continued. A predisposition hearing was held on August 14, 2019. The matter was
continued so that Plaintiff could serve the remaining defendants (who were not named).
On October 2, 2019, the matter was again continued in order for Plaintiff to serve the
remaining defendants. The trial court informed Plaintiff that if the remaining parties
were not served prior to the next hearing, scheduled for January 15, 2020, the matter
would be dismissed.
On December 16, 2019, Plaintiff filed his motion for leave to file a fourth
amended complaint. He named as defendants Loma Linda and Dr. Mukherjee. He also
named Dr. Debow (DOE 1), Dr. Mohr (DOE 2), Dr. Quigley (DOE 3), Slaght (DOE 11),
Dawley (DOE 12), Wright (DOE 13), Tasker (DOE 14), and Sasse (DOE 15). He
alleged that all of the defendants had concealed discovery making it impossible for him to
prove his case.
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Attached to the motion for leave to file a fourth amended complaint, Plaintiff
provided the proposed fourth amended complaint. Plaintiff also provided a copy of a
letter dated October 10, 2018, from attorney Michael D. Reid, who was an attorney at
LaFollette, which advised Plaintiff that the law firm did not represent or accept service
for Debow, Dr. Mohr, Dr. Quigley, Slaght, Dawley, Wright, Tasker or Sasse. Plaintiff
also attached a letter from Fischer dated December 6, 2019, advising Plaintiff that
LaFollette was now representing Dr. Quigley, Dr. Mohr, Sasse, Wright and Slaght.
Fischer would be filing a responsive pleading to the TAC on their behalf. In addition,
Plaintiff provided a proof of service of the motion for leave to file a fourth amended
complaint, which was served on Michael Reid.
On December 16, 2019, Plaintiff moved to stay the trial court proceedings pending
the appeal of the Motion. Fischer had filed a demurrer to the TAC on behalf of Sasse,
Slaght and Wright. LaFollette filed opposition to Plaintiff’s motion for leave to file a
fourth amended complaint on behalf of Slaght, Wright and Sasse.
On January 15, 2020, the trial court held a hearing. Fischer was present. Plaintiff
represented that Defendants had been served. Plaintiff was given time to file the proofs
of service. On January 15, 2020, Plaintiff filed a proof of service that showed he sent the
TAC to Kent Hansen, who he stated was general counsel for Loma Linda. Plaintiff sent a
notice and acknowledgment of receipt. Plaintiff included stamped envelopes for return of
the signed notice and acknowledgment. Plaintiff named Tasker, Dawley and Debow in
the proof of service. He also submitted another proof of service filed on January 15,
2020. He served it on Fischer. He named Dr. Mohr, Dr. Quigley, Slaght, Wright and
10
Sasse. He served the TAC with a notice and acknowledgment of receipt form and
provided a return envelope.
On February 11, 2020, the trial court denied Plaintiff’s motion for leave to file the
fourth amendment complaint. The trial court also denied Plaintiff’s request to stay the
proceedings until the appeal was resolved. The matter of dismissal of the non-appearing
defendants and the demurrer to the TAC was continued to March 16, 2020. The matter
was continued several times to August 16, 2021, which was after the Opinion was filed.
At the August 16, 2021, hearing, the trial court granted a motion for summary
judgment that had apparently been filed on May 14, 2021, for Slaght, Sasse and Wright.
The dismissal of the non-appearing defendants was continued to November 16, 2021.
Judgment on the grant of the summary judgment was signed and filed on September 2,
2021. Notice of entry of judgment was entered on October 7, 2021.
On October 12, 2021, Plaintiff filed another motion to file a fourth amended
complaint. Plaintiff sought to amend to provide the names of the DOES as follows: Dr.
Debow (DOE 1), Dr. Mohr (DOE 2), Dr. Quigley (DOE 3), Dawley (DOE 12) and
Tasker (DOE 14). Plaintiff insisted that Fischer and LaFollette concealed their
representation of Dr. Quigley and Dr. Mohr. He also filed opposition to the order to
show cause regarding dismissal of the non-appearing defendants and a declaration in
support of his opposition. It was nearly identical to the motion for leave to file the fourth
amended complaint. He insisted his delays were caused by court closures due to Covid
and his own “Covid-like symptoms” for the prior two years. He claimed he had served
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all named DOES. Once again he attached the letters from Reid and Fischer regarding
representation of the DOES.
Stephen J. Guichard, an attorney at LaFollette, filed a declaration as amicus curie
in support of the dismissal of Defendants. Guichard declared the TAC had not been
properly served because Fischer had not agreed to accept service. Plaintiff was advised
on October 10, 2018, that LaFollette did not represent DOES 1 through 3, and 11 through
15. Plaintiff was on notice that he needed to properly serve these parties. Plaintiff
instead served a motion for leave to file a fourth amended complaint. Plaintiff had never
filed a proof of service as to service of the TAC on Dawley and Tasker. Guichard also
declared that Plaintiff had removed Dr. Quigley, Dr. Debow and Dr. Mohr as parties in
2018.
The matter was heard on November 16, 2021. Guichard was present and
apparently only represented Loma Linda, Dr. Mukherjee, Sasse, Slaght and Wright.
Plaintiff represented to the trial court that all Defendants had been served. Plaintiff’s
second motion to file the fourth amended complaint was denied.
The trial court entered the following written ruling: “On January 15, 2020,
Plaintiff filed two Proof of Service by Mail where [he] indicates he served the Summons
on the TAC on Doe Defendants Debow, Mohr, Do [Quigley], Dawley and Tasker by
Notice and Acknowledgment of Receipt (2 copies). However, for service to be perfected
by Notice and Acknowledgment of Receipt . . . the Acknowledgment must be returned,
signed, and dated, by the defendant. (Code Civ. Proc., § 415.30, subd. (c).) The Court
file has no executed Acknowledgments from the Non-Appearing Defendants. Thus, the
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service of the TAC has never been perfected on them. (Tandy Corp. v. Superior Court
(Lekoff) (1981) 117 Cal.App.3d 911, 913 . . . .) No other proof of service of Summons
and TAC exists associated with the Non-Appearing Defendants.” The trial court cited to
a case supporting that the summons and complaint must be served within three years of
filing the action. It further stated, “Defendants Debow, Mohr and Do [Quigley] were
named as Does 1-3, respectively on July 10, 2018; Defendant Dawley was named as Doe
12 on August 19, 2018; and Defendant Tasker was named as Doe 14 on September 14,
2018. Three years from the dates they were named are July 10, 2021, August 9, 2021,
and September 14, 2021. This litigation is past those dates without Plaintiff properly
serving any of them. Thus, per Code of Civil Procedure section 583.250, subdivision (a),
since service [was] not completed within 3 years of the Defendant’s naming, the action
shall not be further prosecuted, no further proceedings shall be held, and the action shall
be dismissed by the court whether on its own or by a motion.” The court noted that it
was mandatory to dismiss for delay in prosecution citing to Code of Civil Procedure
section 583.250, subdivision (b). The trial court ordered the TAC be dismissed. Notice
of the dismissal was served on Plaintiff on December 7, 2021.
On January 12, 2022, Plaintiff filed his notice of appeal. He appealed from a
judgment of dismissal pursuant to Code of Civil Procedure sections 581d, 583.250,
583.360 or 583.430 and an order after judgment pursuant to Code of Civil Procedure
section 904.1, subdivisions (a)(3) through (13). He chose to proceed without the oral
record.
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DISCUSSION
Plaintiff has raised numerous issues on appeal that are either not properly before
this court, not supported by adequate legal authority or argument or are
incomprehensible. As stated by Defendants, the only issue that must be resolved by this
court is if the trial court properly dismissed the TAC on November 16, 2021, on the
grounds that Plaintiff failed to properly serve the TAC on Dr. Quigley, Dr. Mohr, Dr.
Debow, Tasker and Dawley within three years.
A. SERVICE OF DEFENDANTS
Plaintiff addresses the service of process in Argument XIII arguing he served Kent
Hansen, the agent of service of process for Loma Linda, which was ignored; that La
Follette committed concealment and fraud impeding service; and there were numerous
reasons for his delay in serving the TAC.
Code of Civil Procedure section 583.210, subdivision (a) provides “The summons
and complaint shall be served upon a defendant within three years after the action is
commenced against the defendant. For the purpose of this subdivision, an action is
commenced at the time the complaint is filed.”
A summons and complaint can be served by mail as follows: “(a) A summons
may be served by mail as provided in this section. A copy of the summons and of the
complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to
be served, together with two copies of the notice and acknowledgment provided for in
subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” (Code
Civ. Proc., § 415.30.) Subdivision (c) of Code of Civil Procedure section 415.30
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provides, “Service of a summons pursuant to this section is deemed complete on the date
a written acknowledgment of receipt of summons is executed, if such acknowledgment
thereafter is returned to the sender.” If such acknowledgment is not received by the
sender, “the party to whom the summons was mailed shall be liable for reasonable
expenses thereafter incurred in serving or attempting to serve the party by another
method permitted by this chapter, and, except for good cause shown, the court in which
the action is pending, upon motion, with or without notice, shall award the party such
expenses whether or not he is otherwise entitled to recover his costs in the action.”
(Ibid.)
“[I]t is long-settled that methods of service are to be strictly construed.”
(Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251.) The
plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is
the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d
866, 868.) “Service of summons in conformance with the mode prescribed by statute is
deemed jurisdictional. Absent such service, no jurisdiction is acquired by the court in the
particular action.” (Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832.) Code of Civil
Procedure section 583.250 provides, “(a) If service is not made in an action within the
time prescribed in this article: [¶] (1) The action shall not be further prosecuted and no
further proceedings shall be held in the action. [¶] (2) The action shall be dismissed by
the court on its own motion or on motion of any person interested in the action, whether
named as a party or not, after notice to the parties. [¶] (b) The requirements of this
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article are mandatory and are not subject to extension, excuse, or exception except as
expressly provided by statute.”
Here, the trial court found that the “action commenced” against Dr. Debow, Dr.
Mohr and Dr. Quigley on July 10, 2018; it commenced as to Dawley on August 9, 2018;
and commenced on September 14, 2018, as to Tasker. The dates of service, therefore,
were before July 10, 2021 (for the first three), August 9, 2021, for Dawley, and
September 14, 2021, for Tasker. The trial court found on November 16, 2021, that there
were no proofs of service nor executed acknowledgments of service filed with the court
to show service by mail was completed on Defendants within three years after
commencement of the action. Plaintiff also failed to demonstrate he attempted to serve
Defendants by an alternative method, such as by personal service or publication. As
such, pursuant to Code of Civil Procedure section 583.250 the trial court had to dismiss
the TAC against Defendants.
Plaintiff claims he served the TAC by mail on Kent Hansen and that LaFollette
committed concealment or fraud by first stating that it did not represent the DOES, then
advising him that it did represent them. He cites as authority for his claim the minute
order from January 15, 2020. That minute order only provides that Plaintiff claimed to
have served Defendants and he was given time to file the proofs of service. He then
refers to a proof of service filed on January 15, 2020. It was addressed to Kent Hansen as
general counsel for Loma Linda. It provided that the TAC was mailed along with
acknowledgements of receipt for Debow, Dawley and Tasker. The other proof of service
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filed on January 15, 2020, was mailed to Fischer. It also provided that the TAC was
mailed along with acknowledgments of receipt for Dr. Mohr and Dr. Quigley.
This evidence does not support that Plaintiff complied with Code of Civil
Procedure section 415.30. No signed acknowledgements were filed in the trial court and
no other types of services were attempted on Defendants. Regardless of whether Plaintiff
could properly serve Defendants by serving Fischer or Hansen, he fails to show that he
complied with the directives for service by mail.
Further, Plaintiff cannot excuse his failure to comply with the directives of Code
of Civil Procedure sections 415.30 and 583.250. Even if he could excuse his failure to
comply, he does not explicate how any delay caused him to be unable to properly serve
Defendants. Plaintiff clearly knew how to conduct service by mail on Fischer and
Hansen during this time. Further, once he did not receive the acknowledgments of
service, as stated in Code of Civil Procedure section 415.30, he was entitled to payment
of the costs of serving Defendants. The cost of trying to personally serve Defendants did
not prevent service and he could hire someone to conduct service. Further, even though
Fischer and Reid represented initially that they did not represent Defendants, Plaintiff
served them with the TAC despite this information. He did not properly execute service
based on the requirements of Code of Civil Procedure section 415.30. The record
supports the trial court’s ruling that proper service of the TAC was not made on
Defendants and the TAC was mandatorily dismissed.
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B. ADDITIONAL ARGUMENTS MADE ON APPEAL
Plaintiff has raised 12 other arguments on appeal, as set forth ante, which are
either not cognizable on appeal, are not clear, or he provides no legal authority or
evidentiary support for his argument.
“In order to demonstrate error, an appellant must supply the reviewing court with
some cogent argument supported by legal analysis and citation to the record.” (City of
Santa Monica v. Adam (2012) 211 Cal.App.4th 266, 286-287.) “[W]e may disregard
conclusory arguments that are not supported by pertinent legal authority or fail to
disclose the reasoning by which the appellant reached the conclusions he wants us to
adopt.” (Id. at p. 287.) “An appellant must provide an argument and legal authority to
support his contentions. This burden requires more than a mere assertion that the
judgment is wrong. ‘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.] 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.)
Plaintiff’s Argument I pertains to the grant of the motion for summary judgment in
favor of Sasse, Slaght and Wright. This court ordered on April 11, 2022, that this appeal
is limited to the dismissal of the TAC on November 16, 2021, based on the non-
appearing parties of Dr. Debow, Dr. Mohr, Dr. Quigley, Dawley and Tasker. This court
also ordered on July 29, 2022, that the appeal would not consider the grant of summary
judgment in favor of Sasse, Slaght and Wright. We will not consider the argument.
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Plaintiff’s Argument II pertains to the allegation of concealment or fraud by
LaFollette in first denying it represented Defendants and then later notifying Plaintiff it
represented Dr. Mohr, Dr. Quigley, Sasse, Wright and Slaght. Plaintiff also claims that
LaFollette denied him discovery in the case. Plaintiff only provides one case citation and
refers to records that this court excluded by denying his request for judicial notice to
admit the records. As such, he has not supported his claim that he was denied discovery.
Moreover, it is equally plausible that LaFollette only represented Loma Linda and Dr.
Mukherjee at the beginning of the case, and then were hired by Dr. Mohr and Dr.
Quigley. Defendant has failed to show concealment or fraud.
Defendant claims he should be allowed to appeal the denial of his motion for leave
to file the fourth amended complaint. However, this court dismissed Plaintiff’s appeal
from the motion for leave to file a fourth amended complaint on February 28, 2022.
Plaintiff’s remaining arguments—Arguments III through XII—all fail to provide
any cogent legal argument as to how the claimed errors require reversal of the trial
court’s order on the dismissal of the TAC for failure to properly serve Defendants. In
addition, Plaintiff fails to provide any relevant legal authority to support his claims. He
also makes conclusory statements without any proper legal argument. As a result, these
claims have been waived. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at
p. 852.) Plaintiff is not entitled to any special treatment in this regard because of his pro
se status. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
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DISPOSITION
The judgment is affirmed. As the prevailing parties, Defendants are awarded their
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
SLOUGH
J.
FIELDS
J.
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