Gerloni v. Zanetti
Filed 2/1/13 Gerloni v. Zanetti CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
MARA GERLONI,
Plaintiff and Appellant,
v.
MAURIZIO ZANETTI,
Defendant and Respondent.
D059695
(Super. Ct.
No. GIC868327)
APPEAL from
a judgment of the Superior Court
of
County, Judith F. Hayes, Judge. Affirmed.
Mara
Gerloni appeals a summary judgment for Maurizio Zanetti, M.D., on her complaint
for misappropriation or theft of corporate
opportunity, breach of fiduciary duty, breach of contract and breach of the
implied covenant of good faith and fair dealing, fraud, and constructive trust. The trial court determined the complaint was
a corporate derivative action and she lacked standing to pursue the action
because she is not a shareholder.
Gerloni
concedes she cannot bring corporate claims, but she contends the complaint also
sufficiently alleged individual claims for breach of contract and fraud and she
raised triable issues of material fact on those claims. Alternatively, she contends the court abused
its discretion by denying her leave to amend the complaint.
We find no
merit to these contentions and affirm the judgment. Gerloni's individual claims, even if
sufficiently alleged in the complaint, are all based on supposed false promises
Dr. Zanetti made to her, which she outlined at length in her declaration. In deposition, however, Gerloni contradicted
her declaration and testified she could not recall any specific promise he
made. The court properly ignored her
declaration and she submitted no other evidence to explain the inconsistencies
or raise a triable issue of material fact.
FACTUAL AND
PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
In 1987 Dr.
Zanetti, a native of Italy,
became a professor of medicine at the University
of California, San Diego
(UCSD). At some point he was named
director of the Laboratory of Immunology at Moores
UCSD Cancer Center. Under UCSD's policy, it owned any patents
derived from his work, but he was entitled to 35 percent of any net income from
licensing the patents. During the
1990's, UCSD patented eight separate concepts Dr. Zanetti developed, which
"form the conception of a universal cancer vaccine."
In August
1993 Gerloni, also a native Italian, joined Dr. Zanetti's laboratory as a
post-doctorate fellow. Gerloni was
involved in ongoing experiments on Dr. Zenetti's technology. She was also required to assign any patent
rights to UCSD.
In October
1993 Dr. Zanetti was accused of "scientific fraud." UCSD investigated the matter for three years
and a hearing was ultimately held before a tenure committee, which exonerated
him after determining his accuser had lied.
Dr. Zanetti threatened litigation against UCSD, and in 1998 the parties
reached a settlement that required UCSD to release its rights to the patents to
him.
The same
year, Purdue Pharma (Purdue) approached Dr. Zanetti about using his patented
technology for its own project. He was
willing to enter into a licensing agreement, in return for Purdue's investment
in a prospective company to be called Transgenix, whose purpose would be
"to develop genetic immunization against disease exploiting the B cell
technology."
In 1999 Dr.
Zanetti incorporated Transgenix in anticipation of a deal with Purdue. That year, he gave a few persons, including
Gerloni, written offers for the opportunity to purchase Transgenix stock,
dependent on the Purdue deal going forward.
He offered her 650,000 shares for $650, which would be 6.5 percent of
the company with a three-year vesting schedule for some of the shares based on
her continuing service to the company.
The offer stated, "The founders' stock will be accomplished through
the execution of a Shareholder Agreement between Transgenix and yourself. The agreement will contain the vesting
provisions and other terms that are typical for transactions of this
nature." Gerloni did not respond to
the offer or tender any payment, and no shareholder agreement was executed.
By October
2000 the Purdue deal appeared doubtful, and an Italian company, Cosmo S.p.A.
(Cosmo), expressed interest in Dr. Zanetti's patented technology. On legal advice, to accommodate a deal with
Cosmo he formed two holding corporations:
Progentec, to hold "the protein part of the B cell
technology," and Eurogen, "which would hold the DNA part." Dr. Zanetti assigned his patent rights to
these corporations.
In 2001 the
Purdue deal finally fell through. That
July Dr. Zanetti and Cosmo entered into a licensing agreement for the patents
Eurogen held. To accommodate the
transaction, Progentec consolidated its patent rights with those of
Eurogen. He was reportedly entitled to
several million dollars from Cosmo for the licensing of the technology. Cosmo also purchased the shell corporation
Transgenix from Dr. Zanetti to use as a vehicle for patient trials at UCSD, and
changed the name to Cosmo Bioscience, Inc. (CBI). Dr. Zanetti netted $18,000 from the sale.
Beginning
in 2002, Dr. Zanetti was a consultant for CBI for a Phase I clinical
trial. Gerloni began working for CBI
part time, and reduced her employment with UCSD to part time. In 2005 Dr. Zanetti and Cosmo had a dispute
and parted ways, and Gerloni left UCSD to become CBI's chief executive officer.
In June
2006 Gerloni sued Dr. Zanetti for misappropriation or theft of corporate
opportunity, breach of fiduciary duty, breach of contract and breach of the
implied covenant of good faith and fair dealing, fraud, and constructive
trust. The gist of the complaint was
that Gerloni was a co-inventor and co-owner of the patents,
but
Dr. Zanetti secretly claimed sole inventor status; he
promised to share any net proceeds from licensing the patents with Gerloni and
other laboratory team members, and to make them co-owners of Transgenix; they
relied on the promises in continuing to work in his laboratory; and he reneged
on the promises by transferring the patents to an offshore company he
controlled, selling the technology, and keeping all the proceeds for
himself. The complaint prayed for
compensatory and punitive damages, and a constructive trust over any proceeds
from the licensing of the patents.
In August
2008 Dr. Zanetti moved for summary judgment, or in the alternative, summary
adjudication. In January 2009 the court
stayed the matter pending the resolution of a United States District Court
patent suit Gerloni had filed against him.
The federal complaint alleged Gerloni co-invented the seventh out of Dr.
Zanetti's eight patents, referred to as the "462 Patent," which is
for technology based on "Somatic Transgene Immunization [STI] and Antigenized
Antibodies."
title="">[5] The 462 Patent was issued in October 2007,
and it derived from a provisional application filed in 1998, which listed Dr.
Zanetti and three of his laboratory members, including Gerloni, as
co-applicants. A final application filed
in 1999, however, listed Dr. Zanetti as the sole inventor. Dr. Zanetti filed a counterclaim against
Gerloni for a declaratory judgment of patent ownership, copyright infringement,
and unfair business practices.
Dr. Zanetti
moved for summary judgment in the federal suit.
To establish co-inventor status, Gerloni was required to prove at trial
that she "significantly contributed to conception of the invention of
STI/TLI." Her testimony alone would
be insufficient; she would have to adduce corroborating
evidence. (Ethicon, Inc. v. U.S. (Fed.
Cir. 1998) 135 F.3d 1456, 1461.) In
February 2010 the court granted the motion, terminating Gerloni's claims and
granting Dr. Zanetti declaratory relief on the ground there was
insufficient evidence from which a jury could reasonably
find Gerloni was a co-inventor or co-owner of the 462 Patent.
cross-claims.
The
superior court then lifted the stay in this action, and in June 2010 Dr. Zanetti
renewed his motion for summary judgment or summary adjudication. He argued the complaint was time-barred; the
mutual assent and certainty elements of contract formation were lacking, and
thus there was no written or oral contract; the complaint's allegations that
Gerloni co-invented or co-owned any of his patents were resolved against her in
the federal suit; and the only surviving claims were that his conduct
diminished the value of the holdings by Gerloni and others in Transgenix, but she was not a shareholder and lacked
standing to pursue a shareholder derivative action. As to the lack of mutual assent and
certainty, Dr. Zanetti submitted deposition testimony of Gerloni in which she
admitted she could not recall him promising her anything in particular,
testimony that contradicted her declaration.
In
September 2010 the court issued a tentative ruling that denied Dr. Zanetti's
summary judgment, but granted him summary adjudication of the complaint's cause
of action for misappropriation or theft of corporate opportunity. After a hearing, however, the court took the
matter under submission, and on October 7, 2010, the court issued an order
granting Dr. Zanetti summary judgment.
The court determined that notwithstanding the titles of the complaint's
counts, all claims remaining after the federal suit were shareholder derivative
claims and as a non-shareholder she lacked standing to bring such an action.
On November
4, 2010, Gerloni moved for leave to amend the complaint. She sought to delete the cause of action for
misappropriation or theft of corporate opportunity, delete claims belonging to
the corporation, and add allegations about an oral contract. She argued she was "not a shareholder as
Zanetti lied to her and never gave her the shares as promised. She does not have to be a shareholder to sue
for fraud and breach of contract."
In December
2010 the court issued a tentative ruling that granted Gerloni leave to
amend. Again, however, the court
reversed itself after the hearing. On
February 1, 2011, the court issued an order denying her leave to amend on the
ground "the allegations of the proposed amended complaint fail to
sufficiently state a personal claim that can be reconciled with the allegations
of the original complaint. . . .The
gravaman of plaintiff's proposed amended complaint continues to support a claim
for the corporation and the proposed allegations cannot survive over
plaintiff's previous allegations, [and] admissions
made in discovery and submitted in summary judgment. [¶] On
the facts of [the] case and evidence
already known, allowing amendment would be a futile act." (Italics added.)
Gerloni
unsuccessfully moved for reconsideration.
On March 4, 2011, judgment was entered for Dr. Zanetti.
DISCUSSION
I
Standard of Review
Code of
Civil Procedure section 437c, subdivision (c),
provides for summary judgment when there is no triable issue of material fact
and the moving party is entitled to judgment as a
another way of saying that the evidence available to the parties, and placed
before the court in support of and in opposition to the motion, raises no
material issue that a trier of fact could resolve in favor of the party
opposing the motion. The function of the
motion is thus to provide a mechanism, short of trial, for 'cut[ting] through
the parties' pleadings in order to determine whether . . . trial is in fact
necessary to resolve their dispute.'
[Citations.] A moving defendant
establishes a right to summary judgment by showing that the plaintiff lacks the
evidence to sustain one or more elements of the cause of action pleaded by him
[or her] or to overcome some defense the defendant is prepared to prove." (Cole
v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756.)
We review a
summary judgment ruling de novo, applying the same standards as the trial
court. (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92
Cal.App.4th 994, 999.) "In
reviewing a motion for summary judgment, we accept as undisputed fact only
those portions of the moving party's evidence that are uncontradicted by the
opposing party. In other words, the
facts alleged in the evidence of the party opposing summary judgment and the
reasonable inferences that can be drawn therefrom are accepted as
true." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1001.)
II
Analysis
" '
"It is a general rule that a corporation which suffers damages through
wrongdoing by its officers and directors must itself bring the action to
recover the losses thereby occasioned, or if the corporation fails to bring the
action, suit may be filed by a stockholder acting derivatively on behalf of the
corporation. An individual [stockholder]
may not maintain an action in his [or her] own right against the directors for
destruction of or diminution in the value of the stock. . . ." '
" (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 124 (
Setting
aside allegations Gerloni co-invented and co-owned Dr. Zanetti's patented
technology, issues finally decided against her in the federal suit, the theory
of her complaint was that he promised her and other laboratory "[t]eam
members" Transgenix stock, and his transfer of the patents to Eurogen,
rather than to Transgenix, devalued Transgenix and deprived her and other team
members of the value of stock he allegedly promised them. Gerloni does not dispute that the complaint
contains corporate claims, and she lacks standing to bring a derivative action
on Transgenix's behalf because she is not a shareholder.
Gerloni
contends, however, that the complaint sufficiently alleged individual claims,
and in opposition to the summary judgment motion she raised triable issues of
material fact. She asserts that
"although there may have been injuries to the corporation the same set of
facts also gave rise to a cause of action for breach of [oral] contract and
fraud−claims that belong to [her], not Transgenix." She submits the federal suit is immaterial
because her individual claims for breach of contract and fraud are unrelated to
the invention or ownership of the patents.
Gerloni
cites Nelson, supra, 72 Cal.App.4th 111, for the proposition that both corporate
and individual claims may be based on the same facts. The opinion states "it is the gravamen
of the wrong alleged in the pleadings, not simply the resulting injury, which
determines whether an individual action lies.
While we agree that in some cases, the same facts regarding injury to
the corporation may underlie a personal cause of action, such as intentional
infliction of emotional distress, breach of contract, fraud, or defamation,
Nelson has not alleged or proved the elements of any such cause of
action." (Id. at pp. 124-125, fn. omitted.)
Even assuming the complaint sufficiently alleged individual claims,
however, we conclude Dr. Zanetti was entitled to judgment as a matter of
law. "The trial court's stated
reasons for granting summary relief are not binding on the reviewing court,
which reviews the trial court's ruling, not its rationale." (Lidow
v. Superior Court (2012) 206 Cal.App.4th 351, 356.)
Gerloni
concedes her "entire complaint is based on the lies [Dr.] Zanetti told her
in order to induce [her] to work−and continue working−on the
[t]echnology." In a November 7,
2008, declaration Gerloni submitted in opposition to Dr. Zanetti's original
summary judgment motion, she detailed Dr. Zanetti's promises. The declaration states he "promised me
that I would share in any profits derived from the technology that I assisted
in creating"; "agreed that I would share in all profits derived from
commercializing the technology"; "told me to be patient because we
had brought the technology to the brink of scientific success and soon we were
going to share in its commercial success"; "repeatedly told me that I
would be a part owner in Transgenix, and that I would share in and benefit from
my hard work developing the technology"; and "said that I was a 6.5%
owner of Transgenix, which entitled me to 650,000 shares of its
stock." The declaration also
states, "Dr. Zanetti told me that Transgenix owned the rights to the
antigenized antibodies and STI technology," and "I had understood
from my conversation with
Dr. Zanetti in 1998 that Transgenix owned the
technology."
On December
9 and 10, 2008, roughly a month after Gerloni signed the declaration, Dr.
Zanetti took her deposition. In support
of his 2010 renewed motion for summary judgment, he submitted portions of her
testimony in which she denied recalling any specific promise. When asked whether Dr. Zanetti ever told her
she would be part owner of Transgenix, she responded, "I don't
remember." When asked whether he
ever told her she would benefit financially from Transgenix, she responded,
"I don't remember." She also
testified she did not recall him telling her they would be partners or she
would own 6.5 percent of Transgenix.
When asked whether Dr. Zanetti made any
promise to her between 1993 and 2001, she responded, "Any
promises−which kind? Which kind of
promises?" Dr. Zanetti's attorney
specified, "Any kind of promise to you," and she responded, "Not
that I can recall right now."
Gerloni also admitted Dr. Zanetti never told her Transgenix owned the
patented technology.
Gerloni
also testified she did not respond to Dr. Zanetti's written offer on the
opportunity to purchase Transgenix stock, "because I don't think there was
anything to accept. [¶] I believe this was more like a recognition of
my efforts. I believe was
like. . . Dr. Zanetti recognizing me for all the efforts
that I made and all my work in the laboratory.
[¶] So I didn't really think−as
I told you, I was very happy and probably−and for sure I thank him about
the opportunity that he was giving to me, but I don't think I ever responded
formally." She confirmed, "I
don't think I saw this letter as an offer but more like a recognition, and for
me, it was a good recognition of my effort.
I was happy about that."
Gerloni
attempts to make light of her deposition testimony, asserting she merely had a
memory lapse and could not recall Dr. Zanetti's promises at that particular
time. Gerloni, however, is a highly
educated and trained scientist and she was deposed just over a month after she
signed her declaration. Had Dr. Zanetti
made the false promises detailed in her declaration, which according to her
declaration left her feeling betrayed, it borders on the absurd that she would
forget them within a month's time. Her
admissions are not trivial matters; they go to the heart of her case. Notably, at the time of
Dr. Zanetti's renewed summary judgment motion in 2010,
Gerloni did not sign a new declaration under oath explaining discrepancies
between her original declaration and her deposition testimony or claiming her
memory had been restored. Without any
recollection of a promise, she had no prospects for trial.
It is
axiomatic that the trial court "may disregard a declaration prepared in
opposition to a summary judgment motion that conflicts with the declarant's
deposition testimony." (
Cal.App.4th 1291, 1309.) In
11 Cal.3d 1, 22 (D'Amico), the
California Supreme Court recognized "admissions against interest have a
very high credibility value. This is
especially true when, as in this case, the admission is obtained not in the
normal course of human activities and affairs but in the context of an
established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes
relevant to the determination, on motion for summary judgment, of whether or
not there exist triable issues of fact
(as opposed to legal issues) between the parties, it is entitled to and should
receive a kind of deference not normally accorded evidentiary allegations in
affidavits."
The court
was well within its discretion in disregarding Gerloni's declaration. Contrary to her argument, her deposition
testimony was not equivocal and taken out of context. As Dr. Zanetti argued, "[t]his is an
egregious case of pleadings grossly contradicting the testimony of plaintiff
provided under oath."
We
acknowledge that appellate court cases have applied D'Amico cautiously. (
69 Cal.App.4th 64, 77.) In
Cal.App.3d 465, 484, for instance, the court explained the "holding of
facts; and this court has recently applied the decision where credible
admissions on deposition were contradicted only by self-serving declarations of
a party. . . . [¶] . . .
We do not interpret the decision, however, as saying that admissions
should be shielded from careful examination in light of the entire record. A summary judgment should not be based on
tacit admissions or fragmentary and equivocal concessions, which are contradicted
by other credible
evidence." (Italics added;
Cal.App.4th 1510, 1524-1525 ["While the D'Amico rule permits a trial court to disregard declarations by
discovery responses (absent a reasonable explanation for the discrepancy), it
does not countenance ignoring other credible evidence that contradicts or
explains that party's answers or otherwise demonstrates there are genuine
issues of factual dispute."]; Whitmire
v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1089 [
principle that neither a party's deposition testimony . . . constitute[s]
'incontrovertible judicial admissions' of a fact that bar the party from
introducing other evidence that controverts the fact."].)
Contrary to
Gerloni's position, her admissions in deposition were not equivocal,
fragmentary or taken out of context.
Moreover, in asserting she submitted other
evidence that raised triable issues of fact notwithstanding her admissions,
she relies principally on her declaration.
To defeat summary judgment, of course, the "other" evidence
had to be something other than her disregarded declaration.
Gerloni
also asserts other portions of her deposition testimony show Dr. Zanetti
"led [her] to believe" she was a partner and owner of
Transgenix. She cites testimony that in
1997 she and Dr. Zanetti began discussing the formation of a company, they
looked for laboratory space, and a business plan was drafted that included her
as director "in charge of the science," but she did not recall ever
discussing the draft with him; in a discussion among her, Dr. Zanetti and
another person, "I remember Transgenix being brought up as . . . a
collaboration between us as opening the company," but "I don't
remember the specific matter of discussion"; "I remember a lot of
brainstorming . . . about the future, about the development, about going ahead
in a direction, Transgenix was part of it"; she thought she was a founder
of Transgenix "because we started Transgenix together"; she did not
recall what words he used, but "in some way, he made me believe"
"I was the owner of the company"; "he made me believe that we
were . . . starting a company together," and in "[m]y opinion, if you
start something together from scratch, that could mean that you own part of the
company."; he told her that "[i]f the technology would work"
they were going to be "billionaires or millionaires"; and she thought
she would receive money from him, although she had no idea how much.
Additionally,
Gerloni testified she lacked knowledge about intellectual property, and thus
she "was thinking [Dr. Zanetti] was taking care of that"; she did not
see Transgenix's entire business plan, but she trusted Dr. Zanetti to protect
"my absolute best interest"; she had no idea what it would cost to
start a company, but she thought funds would come from "outside
investors" rather than herself; Dr. Zanetti went to "a biotech
company up in the Bay Area to . . . make a presentation in order to get them
interested in putting some money in the company"; and when
"Transgenix was . . . started, my understanding was that there was profit
for . . . everybody involved in the company," but "I didn't have a
quantification, and that was another thing that I thought Dr. Zanetti . . .
would take care, and I was trusting that he would have covered my
interest."
title="">[8]
When a
moving defendant has established a prima facie case in his or her favor,
the plaintiff "must produce substantial responsive evidence sufficient to
establish a triable issue of material fact on the merits. . . . [Citations.]
For this purpose, responsive evidence that gives rise to no more than
mere speculation cannot be regarded as substantial, and is insufficient to
establish a triable issue of material fact." (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.) " 'There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.' " (Lidow
v. Superior Court, supra, 206
Cal.App.4th at p. 356.)
"One
of the essential elements of an enforceable contract is mutual consent. [Citation.]
For consent to be mutual, the parties
must all agree on the same thing in the same sense. [Citations.]
' "The existence of mutual consent is determined by objective
rather than subjective criteria, the test being what the outward manifestations
of consent would lead a reasonable person to believe." ' [Citation.]
'If there is no evidence establishing a manifestation of assent to the
"same thing" by both parties, then there is no mutual consent to
contract and no contract formation.' "
(Bowers v. Raymond J. Lucia
Companies, Inc. (2012) 206 Cal.App.4th 724, 732-733 (Bowers), italics added.)
On these
facts, no jury could reasonably find mutual consent. Gerloni's other testimony pertains to her
subjective beliefs and thoughts on the matter.
In determining the issue of mutual assent, however, "a party's
'subjective intent, or subjective
consent, . . . is irrelevant.' " (Steward
v. Preston Pipeline, Inc. (2005) 134 Cal.App.4th 1565, 1587.)
Moreover,
" 'for acceptance of a proposal to result in the formation of a contract,
the proposal "must be sufficiently definite, or must call for such definite
terms in acceptance, that the performance promised is reasonably
certain." [Citation.] A proposal " 'cannot be accepted so as
to form a contract unless the terms of the contract are reasonably
certain. [¶] . . .
The terms of a contract are reasonably certain if they provide a basis
for determining the existence of a breach and for giving an appropriate
remedy.' " [Citation.] If, by contrast, a supposed "contract"
does not provide a basis for determining what obligations the parties have
agreed to, and hence does not make possible a determination of whether those
agreed obligations have been breached, there is no contract.' [Citation.]
'Whether a contract is certain enough to be enforced is a question of
law for the court.' " (
Likewise, a
jury could not reasonably find in Gerloni's favor on the certainty
element. Her evidence does not suggest
any meeting of the minds on the material terms of any agreement, and thus
issues of breach and remedy are not capable of proof.
The
complaint's fraud claim is not for actual fraud, but for constructive fraud
based on the breach of a fiduciary duty Dr. Zanetti supposedly owed
Gerloni. "Constructive fraud
consists: [¶] 1. In
any breach of duty which, without an actually fraudulent intent, gains an
advantage to the person in fault, or anyone claiming under him, by misleading
another to his prejudice, or to the prejudice of anyone claiming under him;
or, [¶]
2. In any such act or omission as
the law specially declares to be fraudulent, without respect to actual
fraud." (Civ. Code, § 1573.)
Even if
there was arguably a fiduciary relationship, which appears doubtful (see
(1972) 25 Cal.App.3d 1, 13 ["The mere placing of a trust in another
person does not create a fiduciary relationship."]), the fraud claim is
also based on supposed promises Dr. Zanetti made to her, and again, she did not
raise a triable issue of material fact on the issue. Summary judgment in his favor was proper.
III
Leave to Amend
Alternatively,
Gerloni contends the court abused its discretion by denying her motion for
leave to amend the complaint to strengthen allegations of individual harm
caused by Dr. Zanetti's alleged promises.
Again, however, her individual claims, no matter how sufficiently
alleged, are untenable given her admissions in deposition testimony and the
lack of other competent evidence to
raise a triable issue of material fact.
DISPOSITION
The
judgment is affirmed. Dr. Zanetti is
entitled to costs on appeal.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
HUFFMAN, J.
name="_ftn1" title="">[1] In discussing the facts, Gerloni block cites the entire 615
pages of her 29 lodged exhibits. We
remind her attorneys that a brief must "[s]upport any reference to a
matter in the record by a citation to the volume and page number of the record
where the matter appears." (Cal.
Rules of Court, rule 8.204(a)(1)(C).) It
is not this court's duty to search through the record unassisted. (Guthrey
v. State of California (1998) 63 Cal.App.4th 1108, 1115.) To avoid delay, however, we have exercised
our discretion to consider her briefing without correction. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
name="_ftn2" title="">[2] Dr. Zanetti's declaration explains he invented
"antigenized antibodies and antigenized genes," "to exploit
normal B lymphocytes harboring antigenized antibody genes as a new form of
personalized 'live' vaccine. Similar to
virus-infected cells, B lymphocytes harboring antigenized antibody genes would
generate over and over immunogenic moieties based on information imparted to
them by DNA (antigenized antibody genes) without, however, infectious
threat. [¶] The new idea would replace conventional
vaccines (for example, the inactivated polio vaccine) administered by a shot in
the arm."
