Filed 9/28/26 Ortiz v. O’Hara CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DAVID ORTIZ AND YUKO B345888
ORTIZ,
Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. 24STCV11706
v.
COLLEEN O’HARA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
David Ortiz and Yuko Ortiz in pro per.
Colleen O’Hara in pro per.
____________________
David and Yuko Ortiz hired attorney Colleen O’Hara to
represent them in a personal injury case after David was struck
by a car while crossing the street. O’Hara eventually withdrew
as their counsel. The Ortizes then sued O’Hara for attorney
malpractice. The trial court sustained O’Hara’s demurrer and
granted her motion to strike the Ortizes’ first amended
complaint. Because the Ortizes did not provide a rule-compliant
brief, we affirm.
We refer to David and Yuko Ortiz by their first names
where necessary to avoid confusion.
A car hit David while he was crossing the street. The
accident caused severe injuries and left David disabled with a
traumatic brain injury. He lost his career in filmmaking. Yuko
also gave up her career to become David’s caregiver.
The Ortizes hired O’Hara to sue those responsible for the
accident. After about four years of litigation, O’Hara withdrew as
their counsel. The court later decided a summary judgment
motion against the Ortizes. They have appealed that decision,
and the case has yet to go to trial against the remaining parties.
The Ortizes filed suit against O’Hara for negligence and
intentional infliction of emotional distress. O’Hara demurred.
After a hearing split across two days, of which the Ortizes
provided us the transcripts, the trial court sustained O’Hara’s
demurrer, found the motion to strike moot, and gave the Ortizes
leave to amend. After an extension, the Ortizes filed the first
amended complaint. O’Hara again demurred and moved to
strike. After another hearing, for which we do not have the
transcript, the trial court again sustained the demurrer and
granted the motion to strike the first amended complaint in its
entirety. The minute order reflects these rulings but nothing
about the court’s reasoning. The trial court entered judgment
against the Ortizes.
The Ortizes appealed this judgment. In their opening brief,
the Ortizes discuss only what happened at the hearing on the
first demurrer, at which the court granted leave to amend.
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We presume the trial court’s ruling is correct. (Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th
1412, 1416.) An appellant bears the affirmative burden of
demonstrating prejudicial error. (LNSU #1, LLC v. Alta Del Mar
Coastal Collection Community Assn. (2023) 94 Cal.App.5th 1050,
1070.) Appellants must support their assertions with cogent
argument with citation to authority and accurate citations to the
record. (Ibid.; Cal. Rule of Court 8.204(a)(1)(B)&(C).) These
rules apply regardless of whether the appellants appear in pro
per. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)
The Ortizes’ opening brief meets none of these
requirements. It discusses only an irrelevant proceeding. Thus,
the few cites to authority and the record included cannot support
cogent argument or accurate record references. We further note
that such omissions are particularly problematic where we are
given a record that is over 5,000 pages long. (City of Santa Maria
v. Adam (2012) 211 Cal.App.4th 266, 287 [the longer and more
complex the record, the more important to adhere to the
rules].) It is neither the court’s job, nor a burden the court can
undertake on behalf of one side, to review such a record to find
support for a party’s arguments.
After O’Hara’s brief pointed out this mistake, the Ortizes
attempted to rectify their error by including argument about the
correct proceeding and citations to the record in their reply
brief. But this is too little too late. (REO Broadcasting
Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [we need
not consider points raised for the first time in a reply brief].) We
do not consider arguments raised for the first time in reply briefs
when doing so would unfairly prejudice the other side. (People v.
Silveria & Travis (2020) 10 Cal.5th 195, 255 [arguments made for
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the first time in a reply brief will not be entertained because of
unfairness to the other party].) While the Ortizes make relevant
arguments in support of the sufficiency of their complaint, they
denied O’Hara the opportunity to respond to any of these
arguments because none of them were raised in the opening brief.
We understand the challenges the Ortizes face in
representing themselves, but we cannot allow leniency to one
party to prejudice the other. (Allen v. City of Sacramento (2015)
234 Cal.App.4th 41, 52 [rule based on considerations of
fairness].) The Ortizes’ failure to comply with the rules regarding
opening briefs precluded O’Hara from a fair opportunity to
respond to their arguments. We therefore decline to consider
them.
We further note that, even if we were to consider the
Ortizes’ arguments about why the demurrer should not have
been sustained and they should have a further chance to amend,
it would not end the matter. The trial court granted O’Hara’s
motion to strike. Even in their reply brief, the Ortizes make no
argument about why that decision was in error.
DISPOSITION
We affirm the order. Each side to bear their own costs.
WILEY, ACTING P. J.
We concur:
VIRAMONTES, J. SCHERB, J.
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