Filed 4/22/15 Terbeek v. Panda Restaurant Group CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



LINDA A. TERBEEK,

         Plaintiff and Appellant,                                        E059775

v.                                                                       (Super.Ct.No. TEC1110843)

PANDA RESTAURANT GROUP, INC.,                                            OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Judge. Affirmed.

         Linda A. Terbeek, in pro. per., for Plaintiff and Appellant.

         Ogletree, Deakins, Nash, Smoak & Stewart, Jack S. Sholkoff and Vanessa C.

Krumbein, for Defendant and Respondent.

         Plaintiff and appellant Linda A. Terbeek brought suit against her former employer,

defendant and respondent Panda Restaurant Group, Inc. (Panda), alleging retaliation,

discrimination, and wrongful termination. Representing herself in pro. per., as she has



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throughout this action, plaintiff appeals the trial court’s decision to sustain Panda’s

demurrer to her third amended complaint (TAC) without leave to amend. We affirm.

                    I. FACTS AND PROCEDURAL BACKGROUND

       Plaintiff alleges in the TAC that she was employed by Panda as a general manager

for an unspecified period of time, and terminated on April 24, 2009. As best we can

discern from the TAC, plaintiff was purportedly terminated for failure to comply with

Panda policies and procedures relating to banking and the handling of daily deposits from

restaurants. She contends that her termination was in fact the product of invidious

discrimination, as well as retaliation for complaints to her supervisors about various

violations of law and company policy, and retaliation for her decision, in relation to a

worker’s compensation dispute between Panda and another employee, to take the side of

the employee.

       Plaintiff’s original complaint, filed in Riverside County Superior Court on

December 8, 2011, alleged employment related claims under state law. Her first

amended complaint added allegations that Panda had violated federal employment law.

The case was removed by Panda to federal court, but was remanded after Panda

successfully moved to dismiss the first amended complaint, on the basis that no federal

law claims remained in her second amended complaint.1




       1 Plaintiff apparently disputes that she has abandoned her federal claims.
Nevertheless, the lack of any remaining federal claims in the case was the basis asserted
by the federal court for remanding the matter.

                                              2
       Following remand, Panda demurred to plaintiff’s second amended complaint. The

court sustained the demurrer on the ground that the alleged causes of action were

“uncertain, ambiguous and unintelligible.” The court granted plaintiff leave to amend,

and the operative TAC was filed on April 26, 2013.

       The normally undemanding exercise of listing the causes of action asserted by a

plaintiff is not so straightforward in this case. The TAC purports to assert 18 causes of

action. These causes of action are numbered, but not labeled with a description of their

natures, as required by the California Rules of Court. (Cal. Rules of Court, rule

2.112(2).) And they are not, in substance, separate claims for violations of separate

primary rights, but instead overlapping and sometimes repetitive collections of facts,

argument, and legal citations addressing several forms of purportedly unlawful conduct

on the part of Panda. Plaintiff conceded as much in oral argument on Panda’s demurrer

to the TAC, suggesting that the numbered sections of the TAC should have been labeled

“facts in support of” rather than “cause of action.”

       Having established that defendant did not in fact even intend to assert 18 causes of

action, despite the form of the TAC, the question remains how many causes of action she

does attempt to assert, and what they might be. At various points in the TAC, as well as

other documents filed in the trial court, plaintiff arguably suggests that she only intends

to assert a single cause of action, for wrongful termination and/or retaliation in violation

of public policy. In her briefing on appeal, plaintiff in essence asserts that the TAC states

facts sufficient to support four causes of action: (1) wrongful termination and/or

retaliation in violation of public policy; (2) a whistleblower retaliation claim pursuant to

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Labor Code section 1102.5; (3) discrimination under the Fair Employment and Housing

Act (Gov. Code, § 12900 et seq.) (FEHA); and (4) retaliation under FEHA.

       Panda’s demurrer to the TAC was filed on May 28, 2013. The matter came on for

hearing on July 11, 2013. The trial court ruled from the bench, sustaining the demurrer

without leave to amend. A written judgment was entered on July 30, 2013.

                                      II. DISCUSSION

A. The Record on Appeal Does Not Comply with the Rules of Court, but Is

Sufficient to Allow a Decision on the Merits.

       Panda contends that we should affirm the trial court’s decision on several bases,

the first of which is the adequacy of the record on appeal. Plaintiff designated for

inclusion in her appendix of record only a few documents from the proceedings below,

including the TAC and its attachments, a declaration plaintiff submitted “in support of”

the TAC, her opposition to the demurrer to the TAC (but not plaintiff’s moving papers or

reply memorandum), and the trial court’s judgment. Though the record plaintiff prepared

does not comply with the California Rules of Court in all respects, we do not find those

deficiencies an appropriate basis for summarily dismissing the appeal, as Panda would

have us do.

       It is a well-established rule of appellate review that it is the burden of the appellant

to provide an adequate record on appeal. (E.g., Hotels Nevada, LLC v. L.A. Pacific

Center, Inc. (2012) 203 Cal.App.4th 336, 348.) Rule 8.124 of the California Rules of

Court requires an appellant’s appendix to include, as among those documents necessary



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for proper consideration of the issues, “any item that the appellant should reasonably

assume the respondent will rely on.” (California Rules of Court, rule 8.124(b)(1)(B).)

       Plaintiff failed to include in her appendix all documents that she should reasonably

have assumed Panda would rely on. She omitted, for example, Panda’s moving papers

and reply memorandum with respect to the demurrer. These documents were particularly

pertinent given that the trial court stated at oral argument that it was sustaining the

demurrer “for the reasons stated in the moving party’s papers.”

       Nevertheless, whether the TAC is impermissibly uncertain, and whether plaintiff

has pleaded any valid cause of action, are questions that ultimately are answered through

examination of the TAC itself, not Panda’s moving papers. Moreover, Panda has

submitted a respondent’s appendix, in which it has included all the documents it contends

plaintiff improperly omitted.2 The record is therefore adequate for us to consider all of

the arguments presented by all the parties on their merits. We find it preferable to do so,

rather than deem plaintiff to have forfeited her appeal for procedural deficiencies.3 We

turn now to that task.


       2  Panda also filed a request for judicial notice of certain documents filed in
federal court in this case, following removal but prior to remand. Plaintiff did not file
any opposition to the request, and the documents at issue are properly the subject of
judicial notice. The request for judicial notice is therefore granted. Nevertheless, the
documents are not essential to our disposition of this appeal, and will not be further
discussed.

       3 Panda also asserts that plaintiff failed to support her appeal with citations to the
record in her briefing as a second procedural failure justifying affirmance. Plaintiff’s
briefing does contain some citations to the record, but Panda is correct that plaintiff has
not complied with the mandate of the California Rules of Court that any reference to a
                                                                   [footnote continued on next page]

                                              5
B. The Trial Court Did Not Err by Sustaining Panda’s Demurrer Without Leave to

Amend.

        1. Standard of Review.

        A demurrer is used to test the sufficiency of the factual allegations of the

complaint to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The facts

pleaded are assumed to be true, and the only issue is whether they are legally sufficient to

state a cause of action. (See, e.g., Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

        “While the decision to sustain or overrule a demurrer is a legal ruling subject to de

novo review on appeal, the granting of leave to amend involves an exercise of the trial

court’s discretion. [Citations.] When the trial court sustains a demurrer without leave to

amend, we must also consider whether the complaint might state a cause of action if a

defect could reasonably be cured by amendment. If the defect can be cured, then the

judgment of dismissal must be reversed to allow the plaintiff an opportunity to do so.

The plaintiff bears the burden of demonstrating a reasonable possibility to cure any defect

by amendment.” (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37,

43 (Traders Sports).)




[footnote continued from previous page]
matter in the record be supported by specific citation to the record. (California Rules of
Court, rule 8.204(a).) Nevertheless, this appeal does not require review of a voluminous
record; plaintiff appeals from a judgment following demurrer, not a motion for summary
judgment or trial. We do not find the shortcomings of plaintiff’s briefing so disruptive of
our review of the merits of the appeal as to warrant deeming her arguments waived, even
if would be within our discretion to do so.

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       2. The TAC Is Impermissibly Uncertain, Ambiguous, and Unintelligible.

       Panda contends that the TAC is uncertain, ambiguous, and unintelligible, and the

trial court indicated at oral argument that it agreed. Having reviewed the TAC, we agree

that it is impermissibly uncertain, and therefore properly subject to demurrer on that

ground.

       Code of Civil Procedure section 430.10 establishes that a pleading that is

“uncertain” is subject to demurrer, defining “uncertain” to include “ambiguous and

unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).) However, a demurrer based on

uncertainty is disfavored and will be strictly construed, even when the pleading is

uncertain in some respects, because ambiguities can be clarified under modern discovery

practices. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Nevertheless, a demurrer for uncertainty is properly sustained where the complaint is so

confusing that the defendant’s ability to understand the complaint is impaired. (Cf.

Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 [though

“inconvenient, annoying and inconsiderate,” lack of labels for causes of action did not

substantially impair defendant’s ability to understand complaint, so demurrer on ground

of uncertainty should have been overruled].)

       Here, Panda’s ability to understand the TAC is substantially impaired by its

uncertainty. The deficiencies of the TAC go far beyond a lack of labels for causes of

action, or inartful and sloppy drafting, or the inclusion of extraneous material, though it




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also suffers from all of these failings.4 As noted, the TAC is ambiguous even as to how

many causes of action are asserted, let alone their nature; it is a matter of some

speculation as to whether the TAC should be read to assert 18, four, or only a single

cause of action. Assuming defendant intends to assert four causes of action, as she

apparently contends in her briefing on appeal, the facts in support of those purported

causes of action are expressed in a loose, jumbled, and rambling manner, and no attempt

is made to separately state each cause of action. (See Craig v. City of Los Angeles (1941)

44 Cal.App.2d 71, 73 [complaint subject to demurrer on the grounds of uncertainty and

unintelligibility because “it attempts to state numerous causes of action in a very loose

and rambling manner without any attempt at separately stating them”].) Further, plaintiff

contends that she suffered discrimination, but it is difficult to determine from the TAC

exactly on what basis she alleges discrimination occurred. She alleges in the complaint

that Hispanic employees of Panda were treated badly, but alleges she herself is

Caucasian. In her reply brief on appeal, she asserts that she is also Hispanic, and insists

she personally suffered discriminated both as a Hispanic and a Caucasian, but there is no

way for Panda to discern that to be a basis of her claims from the allegations of the TAC.

Some portions of the TAC suggest discrimination on the basis of gender or age, in

addition to race. It is simply unacceptable for a plaintiff asserting discrimination claims


       4 Interspersed in the factual allegations of the complaint are snippets of legal
argument and citations to authority that, in a more organized and fully articulated form,
might be an appropriate part of a motion or brief, but do not belong in a complaint. For
example, the following sentence appears no less than four times in the TAC: “Tameny
case supports all Plaintiffs actions taken and remedies for those actions.” (Sic.)

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to in effect require the defendant to speculate as to the alleged basis or bases of the

claims.

       Moreover, in plaintiff’s briefing on appeal, she presents no cogent argument

demonstrating that the TAC is not subject to demurrer on the basis of uncertainty. Even

when, as here, we are conducting a de novo review of issues of law, it remains the duty of

the appellant to demonstrate error in the trial court’s reasoning. (Thomas v. Shewry

(2009) 170 Cal.App.4th 1480, 1485.) Plaintiff has not fulfilled that duty in this case.

The various deficiencies of the TAC, taken together, render any attempt to respond to it

an exercise in speculation and conjecture. The trial court’s decision to sustain Panda’s

demurrer on the ground of uncertainty was not erroneous.

       Panda further argues that, even to the extent the causes of action plaintiff intended

to assert may be discerned or assumed, the TAC was also subject to demurrer for failure

to allege facts sufficient to state cause of action. It is unnecessary, however, for us to

reach that issue, because the TAC’s uncertainty is an independently sufficient basis to

sustain Panda’s demurrer. Moreover, in at least some respects, such an analysis would

require us to speculate as to the nature of the claims plaintiff intended to assert, and

attempt to assemble the scattered factual allegations in the TAC into a coherent whole—

effectively, rewriting the complaint. Especially given that plaintiff’s briefing on appeal

would be of virtually no assistance to us in that exercise, we simply decline to engage in

it. (See Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 44

[neither trial court nor court of appeal will rewrite a complaint].)



                                              9
       No such analysis is needed, however, to conclude that at least some of the claims

plaintiff may have intended to assert are time barred. Specifically, the TAC shows on its

face that any wrongful termination claim or Labor Code section 1102.5 claim plaintiff

might have wished to assert would be barred by the applicable statute of limitations. (See

Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25 [demurrer based on the

statute of limitations lies only where the dates in question are shown on the face of the

complaint].) Since January 1, 2003, common law claims of wrongful termination or

retaliation in violation of policy have been subject to a two-year statute of limitations.

(Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1189, fn. 14; Code Civ. Proc.,

§ 335.1.) Claims pursuant to Labor Code section 1102.5 are governed by the one-year

statute of limitations for an “action upon a statute for a penalty or forfeiture.” (Code Civ.

Proc., § 340, subd. (a); see Labor Code, § 1102.5, subd. (f) [$10,000 penalty for each

violation of section].)5 The TAC alleges that plaintiff was terminated by Panda on

April 24, 2009, more than two years before the action was filed, on December 8, 2011.

Plaintiff’s arguments regarding tolling of the statute of limitations pending the resolution

of her complaint to the EEOC are foreclosed by well-established case law. (Mathieu,

supra, at pp. 1189-1190.) With respect to at least these two potential causes of action,


       5  Plaintiff’s references to Labor Code section 1102.5 arguably could be
interpreted as merely part of her wrongful termination/retaliation claim, viewing that
statute as articulating the public policy element of the common law claim, rather than a
separate cause of action seeking statutory penalties. (See Collier v. Superior Court
(1991) 228 Cal.App.3d 1117, 1123 [discussing public policy of protecting
whistleblowers, codified in Lab. Code, § 1102.5].) We would reach the same conclusion,
however, regardless of how we resolve this ambiguity.

                                             10
therefore, plaintiff failed to state a valid claim, and the demurrer was properly sustained

on that ground, in addition to uncertainty.

       4. The Trial Court Did Not Abuse Its Discretion by Denying Plaintiff Leave to

Amend.

       Plaintiff requested further leave to amend, which the trial court denied. We find

no abuse of discretion.

       “Ordinarily the trial court should be liberal in allowing amendments where the

defect in the complaint is one of form only.” (Billesbach v. Larkey (1911) 161 Cal. 649,

653.) “Where the defect [in a pleading] . . . is reasonably capable of cure, ‘leave to

amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in

question.’” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141,

1146.) Nevertheless, a chance to cure the defect does not mean unlimited opportunities

to amend; “there must be a limit to the number of amended complaints.” (Johnson v.

Ehrgott (1934) 1 Cal.2d 136, 138.) When deficiencies in a plaintiff’s complaints have

been raised by demurrer, and after multiple attempts the plaintiff has not overcome those

deficiencies, the trial court may reasonably conclude that the plaintiff is unable to do so.

(Ruinello v. Murray (1951) 36 Cal.2d 687, 690 [affirming denial of leave to amend after

demurrer sustained to third amended complaint].) Regardless of the number of previous

amendments, the burden is on the plaintiff to “show in what manner [she] can amend

[her] complaint and how that amendment will change the legal effect of [her] pleading.”

(Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 897; see Traders Sports,

supra, 93 Cal.App.4th at p. 43.)

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       Here, plaintiff has had multiple opportunities to amend her complaint, and even

after defendant’s successful motion to dismiss the first amended complaint in federal

court, and demurrer to the second amended complaint following remand, plaintiff has

failed to cure the identified deficiencies. As noted above, some of plaintiff’s potential

claims are time barred, and unlikely to be cured by amendment. Even with respect to

other possible claims that would not be barred by an applicable statute of limitations,

nothing plaintiff presented to the trial court or in her briefing on appeal demonstrates a

fourth amended complaint would not suffer from the same defects as her previous

complaints. The trial court did not abuse its discretion by denying plaintiff further leave

to amend.

                                      III. DISPOSITION

       The judgment appealed from is affirmed. In the interests of justice, the parties

shall bear their own costs on appeal. (California Rules of Court, rule 8.278(a)(5).)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                                             J.
We concur:


       RAMIREZ
                               P.J.

       CODRINGTON
                                 J.




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