Filed 6/3/15 Shore v. Waring Court etc. Med. Group CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



PAULA SHORE,                                                        D065306

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2011-00101028-CU-BC-CTL)
WARING COURT PEDIATRIC & ADULT
MEDICAL GROUP,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Katherine

A. Bacal and William S. Dato, Judges. Affirmed.

         Olins Riviere Coates & Bagula, Mark S. Bagula, Kianne E. Holnagel, Russell

Riviere, Adam Chaikin; Matthew S. Pappas; Paula Shore, in propria persona, for Plaintiff

and Appellant.

         Andrews & Hensleigh and Barbara J. Hensleigh for Defendant and Respondent.
                                             I.

                                    INTRODUCTION

       Dr. Paula Shore filed this action against her former employer, Waring Court

Pediatric and Adult Medical Group (Waring), among others. Shore brought a breach of

contract claim against Waring in which she claimed that Waring breached her

employment agreement by failing to pay her a bonus due under the agreement.1

       Waring brought a motion for summary judgment on the ground that Shore's

breach of contract claim was based on an "absurd" interpretation of the agreement, and

that under the plain meaning of the agreement, no bonus was due. The trial court

granted Waring's motion for summary judgment, ruling that Shore's claim was premised

on a misinterpretation of the agreement.

       On appeal, Shore claims that the trial court erred in granting judgment as a matter

of law for Waring on her breach of contract cause of action. We affirm the judgment.




1      Although Shore also sued two other defendants, and brought additional claims
against Waring, Shore's appellate brief raises claims solely with respect to her breach of
contract claim against Waring. While Shore, appearing in propria persona, raised
additional arguments at oral argument in support of reversal, it is well established that
" '[w]e do not consider arguments that are raised for the first time at oral argument.' "
(Palp, Inc. v. Williamsburg National Ins. Co. (2011) 200 Cal.App.4th 282, 291, fn. 2.)
Accordingly, we restrict our discussion to those claims raised in Shore's appellate brief.
                                              2
                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND2

A.     The Agreement

       In September 2007, Shore entered into an employment agreement with Waring to

provide medical care to patients of the practice (the Agreement).

       Paragraph 3 of the Agreement is entitled "COMPENSATION," and provides in

relevant part:

          "[Shore] will be compensated at a monthly base rate of $10,000 to
          be paid semi-monthly. Once [Shore's] collections have covered
          [Shore's] expenses, 90% of [Shore's] net profits will be paid to
          [Shore]. The net profits are calculated per an income and expense
          statement methodology. The total monies allocated to expenses
          include [Shore's] portion of expenses indicated in paragraph 6 under
          EXPENSES."




2       Attorney Matthew Pappas filed an opening brief on behalf of Shore that contains
not a single citation to the record, in complete disregard of the California Rules of Court.
All rule references are to the California Rules of Court. (See rule 8.204(a)(1)(C) [stating
that each 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"].) In addition, Attorney
Pappas lodged an appellant's appendix that does not include the exhibits offered in
connection with the summary judgment motion at issue on appeal, thereby violating rule
8.124(b)(1)(B).
        We choose to exercise our authority under rule 8.204(e)(2)(C), to disregard such
noncompliance rather than to order corrections or strike the brief with leave to file a new
brief (see rule 8.204(e)(2)(A),(B)), not because Attorney Pappas's transgressions are
minor, but because, as discussed below, we conclude that Shore's appeal is without merit
and we do not wish to further delay the proceedings. (See Lewis v. County of Sacramento
(2001) 93 Cal.App.4th 107, 113 [lamenting failure to provide adequate record citations,
but choosing to disregard noncompliance so as not to further delay the appeal].)
                                              3
       Paragraph 6 of the Agreement provides as follows:

          "EXPENSES. The parties hereto shall be responsible
          for the payment of expenses as set forth below:

          "a. Expenses of [Shore]. The following expenses shall be the
          responsibility of [Shore]:

          "(1) Continuing Medical Education expenses over $1,000 per year
          incurred during any calendar year, if there are no net profits.

          "(2) Prorated expenses for professional licenses, professional fees
          and memberships, and moving expenses if contract is terminated
          before 2 years, if there are no net profits to cover these expenses.

          "(3) No other expenses, unless agreed to in writing.

          b. Expenses of [Waring]. [Waring] shall pay all other reasonable
          business expenses associated with Employee's practice of medicine
          including, but not limited to, rent, nursing and staff salaries, PA
          salaries, Workmen's comp, telephones, utilities, supplies,
          professional license fee, membership fees in required professional
          associations, claims made malpractice costs [sic] and up to $1,000
          of Continuing Medical Education expenses incurred during any
          calendar year. As a full-time employee, [Shore] will be entitled to
          [Waring]'s standard benefits package for full-time employees as
          constituted under [Waring]'s benefits plan. Employee benefits are
          medical insurance after 3 months employment, optional dental
          insurance paid by employee, and simple SEPP retirement plan
          offered to all employees after 1 year of employment."

B.     Shore's breach of contract claim

       In July 2013, Shore filed the operative first amended complaint. In her complaint,

Shore quoted paragraph 3 of the Agreement governing "COMPENSATION," and then

alleged, "[Paragraph] 6(a) of the . . . Agreement sets forth an exhaustive list of expenses

(i.e. the only expenses) for which [Shore] was supposed to be responsible."


                                             4
       In a breach of contract cause of action Shore alleged in relevant part:

          "[Waring] breached the . . . Agreement by (a) making [Shore]
          responsible for expenses[3] which included worker's compensation,
          malpractice insurance, salaries paid to staff (not including [Shore's]
          salary), telephone costs, rent, and various other expenses that were
          not [Shore's] responsibility under [Paragraph] 6 of the . . .
          Agreement and (b) failing and refusing to perform under the . . .
          Agreement by, among other things, paying [Shore] all wages,
          including profits from Waring, to which [Shore] was entitled."

C.     Waring's motion for summary judgment

       Waring filed a motion for summary judgment in which it claimed that it was

entitled to judgment as a matter of law on Shore's breach of contract claim. Waring

pointed out that the final sentence of the compensation provision of the Agreement

(paragraph 3) provides, "The total monies allocated to expenses include [Shore's] portion

of expenses indicated in Paragraph 6 under EXPENSES." (Italics added.) Waring noted

that Shore's breach of contract claim was based on her contention that this provision

should be interpreted as providing that "only those few minor expenses listed in

Paragraph 6(a) of the [A]greement could be deducted from gross revenue for the purpose

of determining 'net profits.' " (Italics added.) Waring argued that the Agreement should

be interpreted as providing that, in calculating Shore's "expenses" under paragraph 3 for

purposes of determining her eligibility for a bonus, the expenses for which Shore was

3       Although Shore alleged that Waring had breached the Agreement by "making
[Shore] responsible for [certain] expenses," it is clear that Shore did not intend to allege
by such language that Waring had required Shore to incur such expenses. Rather, it is
clear from the record that Shore intended to allege that Waring had breached the contract
by failing to pay her a bonus due to Waring's purportedly improper inclusion of certain
expenses in its determination of her ineligibility for such bonus.
                                              5
responsible under paragraph 6(a) were to be included, but that paragraph 6(a) was not an

exhaustive list of all expenses to be considered.

       Waring further maintained that Shore's contention "that most expenses attributable

to her practice must be ignored" in calculating her eligibility for a bonus was "absurd,"

noting that Shore's own base salary was not among the expenses listed in paragraph 6(a).

Waring argued that "[Shore] seems to comprehend the absurdity of her argument,

because in her complaint and in the latest round of damages numbers supplied by

[Shore], she appears to deduct her base pay."

D.     Shore's opposition

       Shore filed an opposition to Waring's motion for summary judgment in which she

argued that paragraph 3 of the Agreement unambiguously provided that only those

expenses listed in paragraph 6(a) of the Agreement could be considered in determining

Shore's expenses for purposes of determining her eligibility for a bonus.4 Shore

maintained that, in determining that she was ineligible for a bonus, Waring had




4      Specifically, Shore argued, "The only expenses allocated to Shore under the
contract are Continuing Medical Education expenses over $1,000 per year incurred
during any calendar year, if there are no net profits; and prorated expenses for
professional licenses, professional fees and memberships, and moving expenses if the
contract was terminated before [two] years, if there were no net profits to cover these
expenses."

                                             6
improperly attributed to her expenses for various overhead costs such as marketing, rent,

and office equipment.5

E.    The trial court's ruling

      After further briefing and a hearing, the trial court entered an order granting

Waring's motion for summary judgment. The court reasoned in part:

          "Shore misconstrues the Agreement, which she concedes is
          unambiguous. . . . Net profit is generally understood to mean
          revenue minus expenses. . . . The dispute here relates to what
          expenses are to be deducted. The fact that Paragraph 6 outlines what
          expenses each party shall be responsible for paying does not mean
          [Waring's] expenses may be ignored when calculating net profit.
          Compensation and expenses are addressed by separate provisions of
          the Agreement. There is nothing inconsistent about specifying that
          [Waring] is responsible for paying certain expenses but then
          considering those same expenses when calculating net profits. The
          fact that Paragraph 3 provides that '[Shore]'s portion of expenses
          indicated in Paragraph 6' are to be included when determining net
          profits merely removes any doubt that Shore's expenses under
          Paragraph 6(a) are to be considered along with [Waring's] expenses.
          Because the word 'includes' is a term of enlargement, this sentence
          does not mean that only Shore's share of expenses may be
          considered. Even Shore impliedly acknowledges that Paragraph 6(a)
          is not an exhaustive list of expenses that may be deducted, because
          she deducts her own salary even though that is not an expense listed
          in Paragraph 6(a). . . . Her expert concedes that [Waring's]
          methodology would be correct if net profits are not limited by
          Paragraph 6."

      The trial court subsequently entered judgment in favor of Waring. Shore appeals

from the judgment.


5      Shore acknowledged that her damages expert had "treated [Shore's] salary as an
expense, which was deducted from revenue in order to determine net profits." Shore
asserted, "This is the manner contemplated under [Paragraph] 3 of the [Agreement]."
                                            7
                                              III.

                                       DISCUSSION

           The trial court properly granted judgment as a matter of law for Waring
                         on Shore's breach of contract cause of action

       Shore contends that the trial court erred in granting judgment as a matter of law

for Waring on Shore's breach of contract cause of action. Specifically, Shore contends

that the trial court "improperly interpreted the clear and unambiguous contract terms at

issue."6

A.     Governing law

       1.      The law governing summary judgment

       A moving party is entitled to summary judgment when he establishes the right to

the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A

defendant may make this showing by establishing that the plaintiff cannot establish one

or more elements of its cause of action, or that the defendant has a complete defense to

the cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)

       On appeal, the reviewing court makes " 'an independent assessment of the

correctness of the trial court's ruling, applying the same legal standard as the trial court in

determining whether there are any genuine issues of material fact or whether the moving

party is entitled to judgment as a matter of law. [Citations.]' " (Trop v. Sony Pictures

6      Shore's brief on appeal contends only that the trial court erred in interpreting the
contract. While Shore brought a claim for accounting in the trial court, she raises no
contention with respect to the trial court's grant of summary adjudication on this cause of
action in her appellate brief.
                                               8
Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143, quoting Iverson v. Muroc

Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.)

       2.      The law governing breach of contract

       In order to prove a breach of contract, a plaintiff is required to establish that the

defendant breached the contract, among other elements. (Armstrong Petroleum Corp. v.

Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1391, fn. 6.)

       In determining whether a triable issue of material fact exists with respect to

breach, it is often necessary to interpret the applicable contract. "[T]he ordinary rules of

contract interpretation" are well established. (Santisas v. Goodin (1998) 17 Cal.4th 599,

608 (Santisas).) The Santisas court described these rules as follows:

            " 'Under statutory rules of contract interpretation, the mutual
            intention of the parties at the time the contract is formed governs
            interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if
            possible, solely from the written provisions of the contract. (Id.,
            § 1639.) The "clear and explicit" meaning of these provisions,
            interpreted in their "ordinary and popular sense," unless "used by the
            parties in a technical sense or a special meaning is given to them by
            usage" (id., § 1644), controls judicial interpretation. (Id., § 1638.)
            Thus, if the meaning a layperson would ascribe to contract language
            is not ambiguous, we apply that meaning. [Citations.]' [Citation.]"
            (Santisas, supra, at p. 608.)

B.     Application

       Shore contends that "[t]he trial court erroneously interpreted the word 'include'

used in the last sentence of [Paragraph] 3." Although Shore's brief is not a model of

clarity, she appears to maintain, as she did in the trial court, that paragraph 3 of the

Agreement unambiguously provides that only those expenses listed in paragraph 6(a) of

                                               9
the Agreement may be considered in determining Shore's expenses for purposes of

determining her eligibility for a bonus (and the amount of the bonus), and that therefore,

a triable issue of fact existed with respect to her breach of contract claim.

       Paragraph 3 provides in relevant part, "The total monies allocated to expenses

include [Shore's] portion of expenses indicated in paragraph 6 under EXPENSES."

(Italics added.)

       "The term 'includes' is 'ordinarily a word of enlargement and not of limitation.' "

(Paramount Gen. Hosp. Co. v. National Medical Enterprises, Inc. (1974) 42 Cal.App.3d

496, 501.) Thus, the text of paragraph 3 suggests that Shore's expenses under paragraph

3 shall include expenses in paragraph 6(a). However, there is nothing in paragraph 3, or

in the remainder of the Agreement, that suggests that Shore's expenses under paragraph 3

shall be limited to the expenses listed in paragraph 6(a).

       Further, interpreting the Agreement as providing that only those few minor

expenses listed in paragraph 6(a) may be included in determining Shore's bonus based on

"net profits" (paragraph 3), is so far contrary to the ordinary understanding of the

meaning of the term "net profits" as to render such an interpretation absurd. The term

"net profits" is ordinarily understood as "[p]rofits after deduction of all expenses . . . ."

(Black's Law Dict. (5th ed. 1979) p. 939, italics added.) In contrast, Shore's

interpretation of the Agreement would provide that only her continuing medical

education and licensing and moving expenses (i.e., expenses listed in paragraph 6(a))

could be considered in determining her eligibility for a bonus based on "net profits," and

                                              10
the amount of such bonus. Indeed, as the trial court properly noted, even Shore impliedly

acknowledged the absurdity of interpreting paragraph 6(a) as containing an exhaustive

list of expenses that may be considered in determining net profits under paragraph 3,

since Shore's expert included Shore's base salary as an expense to be considered in

determining Shore's damages despite the fact that Shore's salary is not an expense listed

in paragraph 6(a).

       We conclude that the trial court properly determined that Waring established that

Shore's breach of contract claim is premised upon a misinterpretation of the Agreement,

and that the trial court properly granted judgment as a matter of a law for Waring on

Shore's breach of contract cause of action.7




7       Shore also contends that the trial court improperly applied the "practical
construction" doctrine (see, e.g., West v. JPMorgan Chase Bank, N.A. (2013) 214
Cal.App.4th 780, 798 [" '[W]hen a contract is ambiguous, a construction given to it by the
acts and conduct of the parties with knowledge of its terms, before any controversy has
arisen as to its meaning, is entitled to great weight' "]), and improperly considered
extrinsic evidence in granting judgment as a matter of law for Waring on her breach of
contract claim. There is nothing in the trial court's order suggesting that the court applied
the practical construction doctrine or considered extrinsic evidence in granting judgment
as a matter of law for Waring on Shore's breach of contract. Accordingly, Shore is not
entitled to reversal of the judgment on either of these grounds.

                                               11
                                           IV.

                                     DISPOSITION

      The judgment is affirmed. Waring is entitled to costs on appeal.8




                                                                              AARON, J.

WE CONCUR:



           HALLER, Acting P. J.



                        IRION, J.




8      In its respondent's brief, Waring requested an award of attorney fees on appeal.
We decline to consider its request. Rule 3.1702(c) sets forth the procedure for claiming
attorney fees on appeal. (See also rule 8.278(d)(2) ["an award of costs neither includes
attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702"].)
                                             12
