Filed 8/12/26 Davidson v. Verona CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MARTIN S. DAVIDSON, B343407
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 24STCV13746)
v.
ANN VERONA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. William F. Fahey, Judge. Affirmed.
Martin S. Davidson, in pro. per.; Marc J. Gedeon and Halil
Hasic for Plaintiff and Appellant.
Johnson & Johnson, Douglas L. Johnson, Glenn R. Coffman
and Hunter S. Litterio for Defendant and Respondent Ann
Verona.
Segal McCambridge Singer & Mahoney, Randall J. Dean
and Ashley H. Verdon for Defendant and Respondent Robert
Seltzer.
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Plaintiff Martin S. Davidson appeals the trial court’s
judgment upon the demurrers of defendants and respondents
Ann Verona and Robert Seltzer (collectively, Defendants) to his
complaint. The court also granted Seltzer’s motion to strike.
Plaintiff’s opening brief is inadequate to show reversible error.
We therefore affirm.
BACKGROUND
Plaintiff filed his complaint against Defendants in
June 2024. The caption of the complaint identifies three causes of
action: accounting; quantum meruit; and conspiracy to commit
fraud.
The underlying allegations are somewhat opaque. It
appears Plaintiff shared a part-interest in a partnership, known
as Ebbets Field Film Company (Ebbets Field), with Verona’s late
husband, Stephen.
Ebbets Field produced, marketed, and distributed the
1974 film The Lords of Flatbush. The film “was released
theatrically by Columbia Pictures” and Ebbets Field had some
ongoing agreement with Sony-Columbia Pictures thereafter.
In 2005, Plaintiff entered into an agreement with Stephen
and two other individuals whereby Plaintiff “would . . . receive
certain participation profits and revenue” generated by The Lords
of Flatbush. The same agreement also purported to supersede, to
some extent, the Ebbets Field partnership agreement as it
pertained to the partnership’s agreement with Sony-Columbia
Pictures.
For a time, Plaintiff received annual profit participation
payments from Ebbets Field. Stephen died in 2019. After his
death, if not earlier, those payments to Plaintiff stopped. Plaintiff
made demands for payment on Verona (again, Stephen’s widow)
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and Seltzer, the partnership’s accountant. According to the
complaint, Defendants “refuse[d] to pay Plaintiff and give him an
appropriate accounting.” Plaintiff alleges he is owed 15 percent of
the profits from The Lords of Flatbush since 2011, totaling
approximately $250,000.
Verona demurred to the complaint. So did Seltzer, who also
moved to strike.
The grounds for Verona’s demurrer were that (1) Plaintiff’s
allegations failed to state any causes of action; and (2) each of the
purported causes of action was barred by its applicable statute of
limitations.
Seltzer’s demurrer generally relied on the same grounds as
Verona’s. His motion to strike addressed Plaintiff’s request for
punitive damages.
After briefing from both sides, the trial court sustained
Defendants’ demurrers and granted Seltzer’s motion to strike.
Among the reasons the trial court sustained the demurrers was
that Plaintiff failed to address Defendants’ arguments and made
only conclusory statements about the adequacy of his complaint
unsupported by specific allegations or legal authority. The court
explained: “ ‘It is not the court’s duty to rummage through the
papers to construe or resuscitate [a party’s] case.’ ” It also
expressly found all Plaintiff’s causes of action to be time-barred.
It denied Plaintiff’s “passing request for leave to amend [a]s also
unsupported.” And it granted Seltzer’s motion to strike.
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The trial court entered judgment for Defendants
accordingly.1 Plaintiff appealed.2
DISCUSSION
Although we review an order sustaining a demurrer de
novo, the plaintiff bears the burden of demonstrating the
demurrer was sustained in error. (Bruni v. The Edward Thomas
Hospitality Corp. (2021) 64 Cal.App.5th 247, 254.) To meet this
burden, “the plaintiff must show the complaint alleges facts
sufficient to establish every element of each cause of action.”
(Rakestraw v. California Physicians’ Service (2000)
81 Cal.App.4th 39, 43 (Rakestraw).) It is not enough to say this is
so; rather, the plaintiff must “frame the issues for us, show us
where the superior court erred, and provide us with the proper
citations to the record and case law.” (Morgan v. Imperial
Irrigation Dist. (2014) 223 Cal.App.4th 892, 913.) If the appellant
fails to meet this burden in his opening brief, the judgment may
be affirmed. (Berman v. HSBC Bank USA, N.A. (2017)
11 Cal.App.5th 465, 471; see also Hastaran v. Marchand (1913)
1 The judgment does not appear in the record. Plaintiff
asserts judgment was entered on May 21, 2025. Seltzer concedes
judgment was entered and neither Seltzer nor Verona contends
we lack jurisdiction for want of a final judgment. We therefore
exercise jurisdiction. (See Okoro v. City of Oakland (2006)
142 Cal.App.4th 306, 309, fn. 2 [no final judgment in record but
accepting the respondent’s concession one entered].)
2 Plaintiff’s notice of appeal is dated before the date he says
judgment was entered. “[W]e treat the notice of appeal as a
premature but valid notice of appeal from the subsequently
entered judgment.” (In re Social Services Payment Cases (2008)
166 Cal.App.4th 1249, 1262, fn. 4 [citing Cal. Rules of Court,
former rule 8.104(e)(2), now rule 8.104(d)(2)].)
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23 Cal.App. 126, 134 [“[E]very point relied upon for a reversal
should have been stated and argued in the opening brief . . . ; and
therefore points not so stated and argued may be deemed to be
waived”].)
Here, Plaintiff fails to meet his burden in his opening brief.
As to whether he sufficiently stated his causes of action, he says
only this, without any citation to or discussion of his allegations
or legal authority: “[He] has pled the requisite elements for each
cause of action in his Complaint, the Demurrers at issue should
not have been sustained and the case dismissed with prejudice.”
This bald assertion is insufficient to show the trial court
erred in sustaining the demurrers. Plaintiff makes no attempt to
enumerate the elements of his causes of action nor explain how
his allegations satisfy those elements. (See Los Altos Golf &
Country Club v. County of Santa Clara (2008) 165 Cal.App.4th
198, 203 [“To show entitlement to reversal the plaintiff must
show that the complaint alleged facts sufficient to establish every
element of each cause of action.”]; Rakestraw, supra,
81 Cal.App.4th at p. 43.)
Similarly, Plaintiff does not attempt to show why leave to
amend should have been granted. In his opening brief, Plaintiff
only asserts the trial court “should have allowed leave to amend”
without mentioning the standard of review, let alone arguing why
it was an abuse of discretion not to. (See McAllister v. Los Angeles
Unified School Dist. (2013) 216 Cal.App.4th 1198, 1206 [denial of
leave to amend reviewed for abuse of discretion].) This failure
amounts to a concession of lack of merit. (Symons Emergency
Specialties v. City of Riverside (2024) 99 Cal.App.5th 583, 597.) In
any event, it is an appellant’s burden to show why leave to amend
should have been granted by addressing the elements of each
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cause of action and specifying additional facts he would allege to
satisfy each element. (Myles v. PennyMac Loan Services, LLC
(2019) 40 Cal.App.5th 1072, 1076.) Plaintiff did neither.
We note Plaintiff did file a reply brief, which contains
several arguments not raised in his opening brief. In effect, the
arguments are all new as none was sufficiently developed in the
opening brief to merit consideration. “ ‘Obvious reasons of
fairness militate against consideration of an issue raised initially
in the reply brief of an appellant.’ [Citation.] Accordingly,
‘[p]oints raised in the reply brief for the first time will not be
considered, unless good reason is shown for failure to present
them before.’ ” (Goldstein v. California Unemployment Ins.
Appeals Bd. (2019) 34 Cal.App.5th 1006, 1026.)
Plaintiff offers no explanation why he did not raise his
arguments in his opening brief. Instead, he asserts he did raise
them, “though, admittedly in scant detail.” For the reasons
already stated, the arguments were so scant as to amount to no
argument at all.
Though not offered as an explanation for raising his
arguments for the first time in reply, we observe that Plaintiff
acted in propria persona in filing his opening brief (and in the
proceedings below), but his reply brief was filed through counsel.
This is not good reason for failing to raise arguments in his
opening brief. “[A] party appearing in propria persona . . . is to be
treated like any other party and is entitled to the same, but no
greater consideration than other litigants and attorneys.” (Barton
v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th
1200, 1210.) Moreover, the trial court’s order clearly notified
Plaintiff that conclusory statements have no persuasive value
and it is not the role of the court to make a party’s case for him.
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Plaintiff failed to heed this direct, personal admonition when
preparing his opening brief. We decline to consider his new
arguments made for the first time on reply through counsel.
DISPOSITION
The trial court’s judgment is affirmed. Defendants are
entitled to their costs on appeal.
RICHARDSON, J.
WE CONCUR:
LUI, P. J.
CHAVEZ, J.
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