Pineda v. CHW Central California Mercy Hospital
Filed 9/11/07 Pineda v. CHW Central California Mercy Hospital CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
CHARLES D. PINEDA, JR., Plaintiff and Appellant, v. CHW CENTRAL CALIFORNIA MERCY HOSPITAL, Defendant and Respondent. | F047346 (Kern Sup. Ct. No. CV253984) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Sidney Chapin, Judge.
Charles Daniel Pineda, in pro. per., for Plaintiff and Appellant.
Clifford & Brown, and Patrick J. Osborn, for Defendant and Respondent.
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I.Appealability
In his response filed in May 2005, appellant identified the orders he appeals from as being orders to show cause and refusals by the superior court clerk to file appellants pleadings.
A.Orders To Show Cause
The Orders to Show Cause directed appellant to appear at hearings to show why sanctions should not be imposed for failing to serve the defendants unless appellant filed proof of service. The orders to show cause directed appellant to do an act -- to either appear or to file proof of service.
An order can be appealed if it requires an appellant to perform an act. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 60, 67 & 68.) However, if the act is an interlocutory step toward a determination of the final issue, that act it is not appealable until the final issues are decided. (Ibid.)
In this case the orders to show cause were initial, interlocutory steps toward resolving the main issue of defective service and, thus, are not appealable. This case is analogous to Woodman v. Ackerman (1967) 249 Cal.App.2d 644, in which plaintiffs were ordered to furnish security and the penalty for failing to furnish security was dismissal. Woodman held that: the orders were nonappealable; an appeal lies only from the judgment of dismissal that follows on nonposting of the security. (9 Witkin, Cal. Procedure, supra, 68, p. 125.)
We conclude that the orders to show cause were not appealable.
B. Clerks Refusal To File Pleadings
The refusal to file pleadings is a ministerial act by a clerk and is inherently an initial step in perfecting a civil complaint which initiates an action. Thus, it is analogous to an initial, interlocutory order to show cause discussed in issue II. Also, on grounds of policy, making such orders appealable would open a floodgate of appeals from every refusal of superior court clerks to accept papers or pleadings.
An analogous case is Leslie v. Roe (1974) 41 Cal.App.3d 104, in which a refusal to provide a free transcript to an indigent appellant was held to be nonappealable.
We conclude that the refusals to file a partys pleadings are not appealable.
II.Deficiencies In Appellants Opening Brief
People v. Dougherty (1982) 138 Cal.App.3d 278, held that defendants brief was so defective that it amounted to a waiver of all appellate issues. Doughertys substantial evidence challenge was waived because the defendant failed to summarize the evidence. The other issues were waived because they were bereft of factual underpinning, record references, argument and/or authority.. Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion. (People v. Dougherty, supra, 138 Cal.App.3d at p. 282.)
In this case, portions of the appellants opening brief are incomprehensible. The brief jumps from issue to issue without any connecting logic in almost a random pattern. The issues are stated in simple declarative sentences in conclusional fashion without factual elaboration or analyses. Citations are general and do not support appellants specific arguments.
These deficiencies are present in all the pleadings appellant has filed in this court.
We conclude that appellants brief is so defective that this appeal should be dismissed.
DISPOSITION
The appeal in the above entitled action is dismissed. Respondents requests for sanctions and judicial notice are denied.
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*Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
