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Bruno v. Matrixx Initiatives, Inc.

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D053252 (Cal. Ct. App. Apr. 21, 2009)

Opinion


ANGELO BRUNO, Plaintiff and Appellant, v. MATRIXX INITIATIVES, INC. et al., Defendants and Respondents. D053252 California Court of Appeal, Fourth District, First Division April 21, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. GIC868821, Frederic L. Link, Judge.

O'ROURKE, J.

Plaintiff and appellant Angelo Bruno, who is representing himself in this appeal, appeals from a judgment in favor of defendants and respondents Matrixx Initiatives, Inc. (Matrixx), Zicam LLC, and Thrifty Payless, Inc. (collectively, defendants), who are marketers or distributors of a product — the nasal gel commonly known as Zicam — that was the subject of Bruno's personal injury action. In a special verdict, a jury found the product's design was not a substantial factor in causing damage to Bruno. On appeal, Bruno contends the product that he used was defective and Matrixx failed to warn him and others of the potential risks and side effects of the product. Defendants ask us to strike Bruno's opening brief and dismiss the appeal because Bruno's brief — the second opening brief he filed after this court ordered his first be stricken — fails to comply with the California Rules of Court. Defendants' motion to strike Bruno's brief, which Bruno has not opposed, has merit. However, rather than striking Bruno's brief, we conclude Bruno has forfeited his arguments on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

We briefly recite the background from the clerk's transcript. In July 2006, Bruno filed a complaint against defendants and others alleging that in 2005, he had purchased a bottle of Zicam from a Rite Aid pharmacy and after using it once, lost his sense of smell. The complaint contained causes of action for strict products liability on theories of defective design and failure to warn, negligence, breach of warranties, common law fraud, "consumer fraud," and negligent misrepresentation. Defendants generally denied the complaint's allegations and asserted numerous affirmative defenses. In March 2008, Bruno dismissed with prejudice his causes of action for strict products liability/failure to warn, negligence, common law and consumer fraud, and negligent misrepresentation.

The matter proceeded to a jury trial, during which Bruno testified on his own behalf and presented expert Terence Davidson, M.D. Dr. Davidson, an otolaryngologist, testified that due to his single use of Zicam, Bruno suffered from a zinc-induced ansosmia (loss of smell). Defendants presented three experts, Richard Dalby, Ph.D., Nona Christine Halmes, Ph.D. and Charles Kimmelman, M.D. Dr. Dalby assessed Dr. Davidson's opinion and testified that there was no scientific literature to support his conclusion; in Dr. Dalby's opinion, Bruno used Zicam as directed and given his use, it was extremely unlikely any gel would reach his olfactory area or smell tissue. Dr. Halmes, a toxicologist, testified that in five clinical studies (four involving Zicam and one involving a zinc gluconate product), no one reported loss of smell. According to Dr. Halmes, to a reasonable degree of scientific probability, the scientific evidence did not support the proposition that Zicam causes permanent smell loss when used according to the package directions. Dr. Kimmelman is a board certified specialist in otolaryngology and head and neck surgery, and has expertise in rhinology and smell and taste disorders. He testified that to a reasonable degree of medical probability, Bruno's smell loss was related to a viral upper respiratory infection and/or chronic sinusitis; that Zicam was not a cause of smell loss. The jury returned a special verdict in defendant's favor, answering "no" to a single question: "Was the design of Zicam® Cold Remedy No Drip Liquid Nasal Gel ("Zicam®") a substantial factor in causing damage to plaintiff Angelo Bruno's sense of smell and taste?"

In June 2008, Bruno filed a notice of appeal and thereafter filed his opening brief. On November 6, 2008, this court ordered the brief stricken and returned it to Bruno for failure to comply with California Rules of Court, rule 8.204(d), which places limits on attachments to briefs. The order granted Bruno 10 days to file a proper brief. Bruno filed a second opening brief on November 12, 2008, to which defendants have responded with a request to strike the brief and dismiss the appeal, as well as arguments on the merits.

All rule references are to the California Rules of Court.

DISCUSSION

I. Motion to Strike Appellant's Opening Brief and Dismiss Appeal

Defendants contend we should strike Bruno's second opening brief and dismiss the appeal for multiple violations of the California Rules of Court, including failure to put separate points under separate headings (rule 8.204(a)(1)(B)), inadequate citations to the record (rule 8.204(a)(1)(C)), inadequate statements of procedural history and appealability (rule 8.204(a)(2)(A), (a)(2)(B)), and inadequate factual statement and reference to facts outside the record (rule 8.204(a)(2)(C)). Defendants have filed a similar motion attacking Bruno's reply brief, which, given our conclusions below, we need not address.

We agree that the defects in Bruno's opening brief warrant an order striking it. The first section of the improperly single-spaced brief is entitled, "Statement of the Case." It purports to recount Bruno's use of Zicam and his ensuing symptoms as well as Dr. Davidson's testimony, but it is entirely without record citations. The second section, entitled "Statement of Appealability," is a three and a half page single-spaced narrative that seems to address Bruno's efforts to oppose one of defendants' motions in limine seeking to exclude evidence of a design change in Zicam's actuator, other matters relating to Matrixx's modification of the Zicam actuator, and other assertedly pending lawsuits against Matrixx. Bruno's "Statement of Facts" is a narrative that is also entirely devoid of record support. Finally, Bruno makes two arguments under the following headings: (1) "The Zicam Cold Remedy Nasal Gel that I used was defective" and (2) "Defendants Failed to Warn About the Risks of Zicam."

Rule 8.204(b)(5) provides that lines of text in an opening brief must be at least one-and-a-half spaced.

Rule 8.204(a)(1)(C) provides that each appellate 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." Courts interpret this rule to mean that the assertions of fact set forth in an appellate brief must be supported by a citation to the part of the record where that fact appears. (See Brewer v. Murphy (2008) 161 Cal.App.4th 928, 936, fn. 4 [defendants' assertion of fact not supported by citation to record]; see also In re S.C. (2006) 138 Cal.App.4th 396, 406 [party must cite to the record showing exactly where objections in the trial court were made].) Because Bruno "recites pages of 'evidence' without citation to the record" in violation of this appellate rule, we are entitled to disregard those portions of his brief. (Rule 8.204(a)(1)(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947; Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451.)

Even if we were to consider the "facts" he recites, Bruno has not presented a coherent factual statement summarizing all "significant facts," as required by rule 8.204(a)(2)(C). (See also Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 50.) Instead, he has impermissibly selected only factual assertions that he believes are favorable to his position and has presented them in a random, disorganized fashion throughout his briefs. This court is not required to make an independent search of the record for facts that support Bruno's position. (In re S.C., supra, 138 Cal.App.4th at p. 407; Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; e.g., Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) An appellant's failure to state all of the evidence fairly in his brief forfeits any alleged error. (In re S.C., at p. 407; Ajaxo Inc., at p. 50; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.)

As defendants acknowledge, rule 8.204(e)(2)(B) does not authorize this court to dismiss the appeal for rules violations; it indicates that an order striking a brief must be combined with leave to file a new brief in compliance with the rules. Further, our first order was issued on grounds Bruno did not comply with the rules pertaining to attachments, giving him 10 days in which to file a complying brief. We did not in that order advise Bruno that if he failed to do so, the appeal would be dismissed. (E.g., Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117.) Were we to strike Bruno's brief for the above-mentioned rules violations, we would be compelled to permit him one last opportunity to file another brief in compliance with those rules. Such an order is unnecessary, however, because even if we disregard Bruno's technical rule violations, the substance of his briefing compels us to conclude he has abandoned his appeal.

Rule 8.204(e) provides in part: "If a brief does not comply with this rule:... If the brief is filed, the reviewing court may, on its own or a party's motion, with or without notice: [¶] (A) Order the brief returned for corrections and refiling within a specified time; [¶] (B) Strike the brief with leave to file a new brief within a specified time; or [¶] (C) Disregard the noncompliance."

II. Bruno Has Forfeited His Appellate Challenges

Bruno's first contention – that the Zicam he used was defective — is essentially an attack on the evidence: that the evidence showed Zicam was the cause of his injuries (the loss of his senses of smell and taste). The argument, which ignores the relevant appellate standard of review, consists mainly of Bruno's purported reiteration of Dr. Davidson's trial testimony and assertions that Dr. Davidson is a qualified expert whose theories and techniques were generally accepted in the relevant medical and scientific community. The jury in Bruno's case, however, found otherwise in the face of contrary evidence from defendants' experts.

We review challenges to the evidence supporting a jury's verdict under the substantial evidence standard. Under this standard, " '[w]hen a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' [Citations.] [¶] 'It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.' " (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)

"[A]n attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. [Citation.] Thus, appellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it ' "are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed waived." ' " (Nwosu v. Uba, supra, 122 Cal.App.4th 1229, 1246 .) As we have stated, " '[t]he appellate court is not required to search the record on its own seeking error.' " (Ibid.) Because Bruno did not offer a fair statement of the evidence but instead set forth a one-sided version favoring his own view, ignoring the jury's findings and the evidence in support of those findings, he has forfeited his challenge to the sufficiency of the evidence. (See Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 783.) Bruno's next contention — that defendants failed to warn about Zicam's risks, both ignores the standard of review and advances a theory of liability that was abandoned before trial, when Bruno dismissed his cause of action for strict liability/failure to warn with prejudice. Having elected not to present a theory of liability based on defendants' failure to warn, Bruno cannot raise such contentions on appeal. " '[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.' Thus, 'we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived.' " (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fns. omitted.) Nor do we consider issues that Bruno raises for the first time in his reply brief. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214.) To the extent Bruno seeks to challenge the trial court's evidentiary in limine ruling about Zicam's design change under the heading, "Statement of Appealability," we reject the challenge. Where a plaintiff makes claims "without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis." (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19, overruled on different grounds as stated in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Further, the assertions contained within this section of Bruno's brief are largely matters that are unsupported by any record support. In any event, we review evidentiary rulings for abuse of discretion, and Bruno has not addressed the trial court's ruling on this matter, explained the basis for its ruling, or shown how the ruling constitutes a manifest abuse of the trial court's broad discretion in excluding evidence. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1685 [exercise of court's discretion to exclude evidence under Evidence Code section 352 will be disturbed on appeal only if the trial court exercised it in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice].)

III. Conclusion

In reaching our conclusions in this case, we are mindful that Bruno represents himself. However, his status as a party appearing in propria persona does not provide a basis for preferential consideration. Our high court has made clear that, "mere self-representation is not a ground for exceptionally lenient treatment." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Id. at p. 985.) "A party proceeding 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.' [Citation.] Indeed, ' "the in propria persona litigant is held to the same restrictive rules of procedure as an attorney." ' " (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.) These rules hold true in the appellate courts. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246-1247; Bistawros v. Greenburg (1987) 189 Cal.App.3d 189, 197.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.


Summaries of

Bruno v. Matrixx Initiatives, Inc.

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D053252 (Cal. Ct. App. Apr. 21, 2009)
Case details for

Bruno v. Matrixx Initiatives, Inc.

Case Details

Full title:ANGELO BRUNO, Plaintiff and Appellant, v. MATRIXX INITIATIVES, INC. et…

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 21, 2009

Citations

No. D053252 (Cal. Ct. App. Apr. 21, 2009)