Opposition Brief — Molina v. Superior Court of California
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Supreme Court of the United States
4
FRANCISCO MOLINA JR.,
Petitioner,
v.
CHEVRON U.5S.A., INC., S.W.A.T. ENERGY, INC.,
STEVE TANG, EDDY WU, and MARIAN TANG,
Respondents.
¢
On Petition For Writ Of Certiorari
To The Court Of Appeal Of California,
First Appellate District
*
BRIEF OF RESPONDENTS IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
®
JEFFREY L. ADAMS (Counsel of Record)
Lisa C. CHAGALA
For Respondents
Chevron Products Company, a division
of Chevron U.S.A., Inc., S.WA.T. Energy, Inc.,
Steve Tang, Eddy Wu, and Marian Tang
LITTLER MENDELSON, P.C.
1255 Treat Blvd., Suite 600
Walnut Creek, California 94597
(925) 932-2468
COCKLE LAW BRIEF PRINTING CO. (800) 225-4964
OR CALL COLLECT (402) 342-3831
COUNTER-STATEMENT OF
QUESTIONS PRESENTED
Whether the California Court of Appeal applied
well-settled law in affirming the California Superior
Court’s decision to sustain Respondents’ demurrer to
Petitioner’s First Amended Complaint.
il
LIST OF PARTIES IN COURT BELOW
1. Francisco Molina Jr.
2. Chevron U.S.A., Inc.
3. S.W.A.T. Energy, Inc.
4. Steve Tang
5. Eddy Wu
6.
Marian Tang
CORPORATE DISCLOSURE STATEMENT
Chevron U.S.A., Inc. is a wholly owned sub-
sidiary of Chevron Corporation, which is a publicly
traded corporation.
S.W.A.T. Energy, Inc. is a privately owned cor-
poration. There is no parent or publicly held company
owning 10% or more of the corporation’s stock.
ili
TABLE OF CONTENTS
Page
COUNTER-STATEMENT OF QUESTIONS PRE-
IIIT isi cn chiceniedensntesiaanmsimmoneioadaamnadninivhiawasenns i
LIST OF PARTIES IN COURT BELOW............. ii
CORPORATE DISCLOSURE STATEMENT....... ii
Fe OE inci cesscscecccccnscnsespsssiinmeesesabaaees 1
STATUTES AND OTHER PROVISIONS IN-
WE acchiccnstigiccny cecal etaibyscsusasedacsntcccusucinsidose 2
STATEMENT OF THE CASE. ..................:2ceeeeees 3
A. Petitioner’s Factual Allegations As Stated
In First Amended Complaint..................... 4
B. Superior Court Proceedings ...................... 5
1. Petitioner’s Original Complaint And
Respondents’ Demurrer....................... 5
2. Petitioner’s First Amended Complaint
And Respondents’ Demurrer ............... 6
C. California Court Of Appeal Proceedings... 8
D. California Supreme Court Proceedings..... 9
E. Petitioner’s Petition For Writ Of Certio-
CUNT i cicincacccdudbniieccabentnatsasaananrd a eeediens 10
REASONS FOR DENYING THE PETITION ..... 10
A. Summary GF Armument .............ccccccsccssccees 10
B. The Criteria Of Supreme Court Rule 10
SRE I CI acdc n cassie co sosene dasndncahcsosunnes 11
C. Petitioner’s Arguments Are Insufficient
COPOUIIGES FOP TRO TIIW ono ececcscccccscccccaseccecssceces 12
lV
TABLE OF CONTENTS — Continued
Page
1. Petitioner’s “Fraud Upon The Court”
Theory Is An Insufficient Ground For
EE cata nekdnneccteeiaaeidiebrvunisnes tiacusbuesions 12
2. Petitioner’s Argument Of “Injustice
Of Dismissal Of His Complaint” Is An
Insufficient Ground For Review.......... 15
D. The California Court Of Appeal’s
Decision To Affirm The Superior Court’s
Order Sustaining Respondents’ Demurrer
We III Utes cuepenisinetiasincsssdesisvecivescurecese 16
1. BRR GE TIO cece cecccccscseccocccocseess 16
2. Petitioner Did Not Comply With The
Superior Court’s Order Sustaining
The Demurrer To His Complaint ........ 17
3. The First Amended Complaint Was
Hopelessly Uncertain, Ambiguous And
acs chcscatmshnieiimenaencehs 18
4. Petitioner Failed To State A Cause Of
Action For Wrongful Termination
Against Any Of Respondents............... 20
5. Petitioner May Not Recover Allegedly
Underpaid Wages From Marian Tang.... 24
6. The Second Cause Of Action For
Fraud And Deceit Was Inadequately
Pai iaiinsaiaassovbiananatdnindoistavniibuakeiessiaes 26
7. Petitioner’s Demands For Punitive
Damages Were Unsupported............... 27
I iis Gi vinsaiscsdediiantcdeutdnssesssusaseheses 29
Vv
TABLE OF AUTHORITIES
Page
CASES
Ankeny v. Lockheed Missiles & Space Co., 88
IIE MII IID, oo. cnn sccacccsnnceecweusceapnavwebibuetes 18
Blank v. Kirwan, 39 Cal.3d 311 (1985)................ 16, 26
District of Columbia Court of Appeals uv.
Feldman, 460 U.S. 462 (IGBS) ........ccccscccccscscccccesecee 13
Donabedian v. Mercury Ins. Co., 116
SE Fe COD esccesscnvasceucescoscvsesversessncessossne 13
Ebaugh v. Rabkin, 22 Cal.App.3d 891 (1972)............ 28
Gil v. Bank of America, N.A., 138 Cal.App.4th
ari ccc adoeeranennnnmeiinaienin all 26
Green v. Ralee Engineering Co., 19 Cal.4th 66
SIE isihs0s sdcisiciaddaduaneeroptouea vais pcideadvitensdaebinenbecnsiensdacas 20
Holmes v. General Dynamics Corp., 17
Se NGEE MEIC RII fa csccsnsccssicevcdssesanessecincacvooses 20
J.B. Aguerre, Inc. v. American Guar. and Liab.
Ins. Co., 59 Cal.App.4th 6 (1997) ................ceceeeeeees 7
Jacobs vu. Universal Development Corp., 53
Cal.App.4th 692 (1997) ...........ccccccscscessscscessesecseeee 22
Jones v. Gregory, 137 Cal.App.4th 798 (2006)........... 25
Khajavi v. Feather River Anesthesia Medical
Group, 84 Cal.App.4th 32 (2000)..........00... eee 22
Phillips v. Gemini Moving Specialists, 63
I ID soni cnnescncacccreecsessnsassaceseceswents 22
Reno v. Baird, 18 Cal.4th 640 (1998).......000.00. eee. 22
Reynolds v. Bement, 36 Cal.4th 1075 (2005) ....... 24, 25
Vi
TABLE OF AUTHORITIES — Continued
Page
Rooker v. Fidelity Trust Co., 263 U.S. 413
aa a 13
Scifando v. City of Los Angeles, 31 Cal.4th 1074
SITS icinnjiiibesduuleunennehaeaiieddiveiekesisisestbunpessesesenssencesss 16
Weinbaum v. Goldfarb, Whitman & Cohen, 46
IEE RENEE CRUIIIED ccccsccccscccnscosncacneccesocenacsosains 22
STATUTES
Re IIE GIN. scccccesenscencessceccensoncsonisenseccoresoosens 5
a cna cocutnastidnisnentenbeehouensmupanenbebe 4
os wh sna unteusbucnbedadienabausnens 5
cs cup snscbsbnnevensdassneieebl 5
California Civil Code $3294(a).................cccccssecsccescees 28
California Civil Code §3295(e) ........................00665 27, 28
California Corporations Code §27101.................. 20, 24
California Corporations Code §27200.................. 20, 24
California Government Code §12940..................0..0000.. 5
California Government Code §70613(b) ..................0.65 3
California Labor Code §6310(a)(2)...............c.sccceeeseees 21
RULES
California Code of Civil Procedure 422.30 .................. 2
California Code of Civil Procedure 425.10(a)........ 2,18
California Code of Civil Procedure 430.10(e) .............. 3
vil
TABLE OF AUTHORITIES — Continued
Page
California Code of Civil Procedure 430.10(f) ..3, 13, 18
California Code of Civil Procedure 430.30 .................. 3
California Code of Civil Procedure 436(b)................. 28
Federal Rule of Civil Procedure 12(b)(6)................... 15
Federal Rule of Civil Procedure 12(e)........................ 15
Federal Rule of Civil Procedure 12(f).............0.....00... 15
Federal Rule of Civil Procedure 60(b)........................ 14
Federal Rule of Civil Procedure 60(b)(3) ................... 14
FUME OMAS TOUTE TRIG BO... ccccccccccccrcccccscsssccscccssocssese 11, 12
OTHER AUTHORITIES
EUGENE GRESSMAN ET AL., SUPREME
COURT PRACTICE p. 140 (9th Ed. 2008) ............ 13
Preamble to Public Law 111-21...........................0..000. 14
1
OPINIONS BELOW
The California Superior Court’s Order sustaining
Respondents’ Demurrer to Petitioner’s Complaint is
unreported and is included as Appendix A hereto.
The California Superior Court’s Order sustaining
Respondents’ Demurrer to Petitioner’s First Amended
Complaint is unreported and is included as Appendix
B hereto.
The Order of the California Court of Appeal
denying Petitioner’s Petition for Writ of Mandate/
Prohibition is included as Appendix C hereto.
The Order of the California Court of Appeal
affirming the California Superior Court’s Order sus-
taining Respondents’ Demurrer to Petitioner’s First
Amended Complaint is unreported and is included as
Exhibit D hereto.
The Order of the California Court of Appeal
denying Petitioner’s Petition for Writ of Mandate is
unreported and is included as Appendix D to the
petition.
The California Supreme Court’s Order denying
Petitioner’s Petition for Review of the California
Court of Appeal’s denial of Petitioner’s Petition for
Writ of Mandate/Prohibition is unreported and is in-
cluded as Appendix C to the petition.
The California Supreme Court’s Order denying
Petitioner’s Petition for Review of the California
Court of Appeal’s Opinion affirming the Superior
2
Court’s Order is unreported and is included as
Appendix B to the petition.
The California Supreme Court’s Order denying
Petitioner’s Petition for Review of the California
Court of Appeal’s denial of Petitioner’s Writ of Man-
date is unreported and is included as Appendix A to
the petition.
+
STATUTES AND OTHER
PROVISIONS INVOLVED
California Code of Civil Procedure §425.10(a)
provides:
(a) A complaint or cross-complaint shall
contain both of the following:
(1) A statement of the facts consti-
tuting the cause of action, in ordinary and
concise language.
(2) A demand for judgment for the
relief to which the pleader claims to be en-
titled. If the recovery of money or damages is
demanded, the amount demanded shall be
stated.
(b) Notwithstanding subdivision (a), where
an action is brought to recover actual or
punitive damages for personal injury or
wrongful death, the amount demanded shall
not be stated, but the complaint shall comply
with Section 422.30 and, in a limited civil
3
case, with subdivision (b) of Section 70613 of
the Government Code.
California Code of Civil Procedure §430.10(e)
provides:
The party against whom a complaint or
cross-complaint has been filed may object, by
demurrer or answer as provided in Section
430.30, to the pleading on any one or more of
the following grounds: ...
(e) The pleading does not state facts suf-
ficient to constitute a cause of action.
California Code of Civil Procedure §430.10(f)
provides:
The party against whom a complaint or
cross-complaint has been filed may object, by
demurrer or answer as provided in Section
430.30, to the pleading on any one or more of
the following grounds: .. .
(f) The pleading is uncertain. As used in
this subdivision, “uncertain” includes am-
biguous and unintelligible.
4
STATEMENT OF THE CASE
Petitioner’s Statement of the Case contains in-
accuracies and immaterial allegations and omits
critical undisputed facts. The following Statement of
the Case accurately reflects the relevant portions of
4
the undisputed factual record, as well as the lower
courts’ decisions.
A. Petitioner’s Factual Allegations As Stated
In First Amended Complaint.
This is an employment law case where Petitioner
filed suit against his former employer and other
entities and individuals. Petitioner originally filed
suit in the Superior Court of California, Contra Costa
County. In his First Amended Complaint, Petitioner
alleged: Petitioner was hired by S.W.A.T. Energy, Inc.
(“S.W.A.T.”) in or around September 2006 to perform
services as a Civil Structural Engineer at Chevron’s
Richmond Refinery. Petitioner was asked to prepare
or sign off on various plans, calculations or construc-
tion related to Chevron facilities. Petitioner refused
to prepare, modify or approve any plans, calculations
or construction that did not comply with applicable
building codes, despite the requests of the Respon-
dents that he do so. Petitioner was dismissed on or
around February 5, 2007 after refusing to “cover up”
an area that had been illegally graded and paved.
Petitioner and Respondent S.W.A.T. agreed on an an-
nual salary of $104,000, and Petitioner received
$21,000 for his work in the last three calendar
months of 2006 — approximately $5,000 less than he
allegedly should have received.
Petitioner’s First Amended Complaint set forth
the following causes of action: (1) Breach of Labor
Contract (29 U.S.C. §185); (2) Breach of Duty of Fair
5
Representation (29 U.S.C. §§151 et seq.); (3) Violation
of the Americans With Disabilities Act (42 U.S.C.
§12101, Cal. Gov’t Code §12940); (4) Age Discrimi-
nation (29 U.S.C. §216(B), Cal. Gov’t §12940); (5)
Fraudulent Misrepresentation; (6) Defamation; (7)
Malicious Prosecution; (8) Abuse of Process; and (9)
Tortious Discharge in Violation of Public Policy.
B. Superior Court Proceedings.
1. Petitioner’s Original Complaint And
Respondents’ Demurrer.
On approximately December 27, 2007, Petitioner
filed his initial Complaint with the California Supe-
rior Court, Contra Costa County. On or about Feb-
ruary 28, 2008, Respondents filed a demurrer to
Petitioner’s Complaint. On April 30, 2008, the Supe-
rior Court issued an order sustaining Respondents’
special demurrer with leave to amend. The Court
explained its ruling in part as follows:
[T)he complaint is ‘ambiguous,’ in that it is
difficult to tell which of the lengthy intro-
ductory allegations apply to each of the
named defendants, and to each cause of
action.... The complaint is also ambiguous
as to whether plaintiff is attempting to state
a fraud cause of action.... [T]he length of
the recitation of background facts in the
introductory allegations, the confusing word-
ing of those allegations, the references to legal
authorities such as Nolo Press publications
and attorney general opinions ... and the
6
overall method of the complaint’s organiza-
tion, render the complaint ‘unintelligible’
within the meaning of the special demurrer
statute.
Appendix A hereto. The Superior Court provided Peti-
tioner approximately 15 days to file and serve an
amended complaint. The Court’s order advised Peti-
tioner to seek the assistance of an attorney, and the
order set forth specific, understandable requirements
as to how to amend his complaint.’
2. Petitioner’s First Amended Com-
plaint And Respondents’ Demurrer.
On May 13, 2008, Petitioner filed his First
Amended Complaint. On or about June 12, 2008,
Respondents filed a demurrer to Petitioner’s First
Amended Complaint. Petitioner did not file or serve
an opposition to that demurrer and did not contest
the Court’s tentative ruling issued in favor of Re-
spondents. On August 14, 2008, the Superior Court
issued an order sustaining Respondents’ demurrer
without leave to amend. The Court explained in its
order:
Defendants’ special demurrers are sustained
without leave to amend, as to the entire
' Petitioner’s argument that “This Civil Complaint .. had
three Admissions Deemed Entered For Late Responses ... ” is
misleading. Petition page 3. The court did not enter an order
deeming admissions entered.
7
complaint, and as to each cause of action
within the complaint.... Despite an oppor-
tunity to amend, and despite the detailed
explanation in the Court’s previous ruling of
the pleading defects that plaintiff needed to
address, plaintiff’s First Amended Com-
plaint is impermissibly ‘uncertain’ in most of
the same respects as the original complaint.
Defendants’ general demurrers are also sus-
tained without leave to amend, as to the
entire complaint, and as to each cause of
action within the complaint. ... Despite the
confusing nature of the First Amended
Complaint, the Court has made a reasonable
effort to evaluate those allegations specific-
ally referenced under the headings for
individual causes of action. Based on this
evaluation, the Court finds as follows: ... the
First Cause of Action does not state facts
sufficient to constitute a cause of action for
wrongful termination in violation of public
policy ... the Second Cause of Action does
not state facts sufficient to constitute a cause
of action for fraud ... the Third Cause of
action does not state facts sufficient to con-
stitute a cause of action for conversion... .
The action is hereby dismissed with
prejudice. ...
Appendix B hereto. On September 24, 2008, the
Court entered judgment in favor of Respondents.
8
C. California Court Of Appeal Proceedings.
On September 9, 2008, Petitioner filed a petition
for writ of mandate/prohibition with the California
Court of Appeal. On September 11, 2008, that petition
was denied. Appendix C hereto.
On August 28, 2008, Petitioner filed a Notice of
Appeal with the California Court of Appeal. On June
29, 2009, the Court of Appeal issued an order af-
firming the Superior Court’s order. The Court of
Appeal held that the trial court could reasonably
conclude that even if it gave Petitioner another addi-
tional opportunity to amend his complaint, there was
no reasonable possibility that he would file an
intelligible complaint. The Court of Appeal further
explained:
We agree with the trial court’s determination
that the first amended complaint is uncer-
tain within the meaning of section 430.10,
subdivision (f). As the court observed, the
lengthy recitation of background evidentiary
facts is rambling, confusing, drafted in in-
complete sentences and thoughts and gen-
erally disorganized. Contained within the
litany of unrelated facts are random and
unexplained citations and quotations from
various legal authorities. More importantly,
it is difficult to determine with reasonable
reliability what allegations are made against
each defendant and what facts form the
alleged basis of what cause of action. As
defendants note, ‘Since [Petitioner] verified
the [first amended complaint], [defendants]
9
would be required to admit or deny each and
every allegation and verify their response
which is impossible if [they] cannot under-
stand the allegations.’... [T]he level of
uncertainty is sufficient to reasonably pre-
vent defendants from filing a responsive
pleading.
Appendix D hereto (Ct. App. Opp., p. 4).
On July 29, 2009, Petitioner filed with the Court
of Appeal a petition for writ of mandate. On July 30,
2009, the Court of Appeal denied that writ of man-
date. Appendix D to the petition.
D. California Supreme Court Proceedings.
On September 17, 2008, Petitioner filed with the
California Supreme Court requests for review of the
Court of Appeal’s denial of his petition for writ of
mandate/prohibition. On October 22, 2008, the Cali-
fornia Supreme Court denied his request for review.
Appendix C to the petition.
On July 30, 2009, Petitioner filed with the Cali-
fornia Supreme Court a petition for review of the
Court of Appeal’s opinion affirming the Superior
Court’s order sustaining Respondents’ demurrer. The
California Supreme Court denied Petitioner’s request
for review on September 9, 2009. Appendix B to the
petition.
On August 5, 2009, Petitioner filed with the
California Supreme Court a petition for review of the
10
denial of his second petition for writ of mandate. On
September 9, 2009, the California Supreme Court
denied Petitioner’s requests for review. Appendix A to
the petition.
E. Petitioner’s Petition For Writ Of Certiorari.
Petitioner filed a petition for writ of certiorari in
this Honorable Court, which was docketed on Decem-
ber 17, 2009. Petitioner seeks review of the California
Court of Appeal’s opinion affirming the Superior
Court’s order sustaining Respondents’ demurrer,
which the California Supreme Court declined to
review.
e
v
REASONS FOR DENYING THE PETITION
A. Summary Of Argument.
The instant petition for writ of certiorari should
be denied. Petitioner failed to identify, in accordance
with Supreme Court Rule 10, either (1) an important
federal question that the California Court of Appeal
decided in a way that conflicts with the decision of
another state court of last resort or of a United States
Court of Appeal, or (2) an important federal question
that has not been, but should be, settled by this
Court, or has decided an important federal question
in a way that conflicts with relevant decisions of this
Court. Moreover, the Court of Appeal’s decision was
correct. Petitioner seeks certiorari for no other reason
than to have this Court review his First Amended
11
Complaint in search of a viable claim that both the
California Superior Court and California Court of
Appeal could not find. Such is insufficient grounds for
review.
B. The Criteria Of Supreme Court Rule 10 Are
Not Satisfied.
This Court has complete discretion in deter-
mining whether to grant a petition for writ of
certiorari and will grant a petition only for compelling
reasons. Sup. Ct. R. 10. Review of the California
Court of Appeal’s decision might be appropriate, for
example, if the California Court of Appeal had
decided an important federal question in a way that
conflicts with the decision of another state court of
last resort or of a United States court of appeal.
Review also might be appropriate if the California
Court of Appeal had decided an important question of
federal law that has not been, but should be, settled
by this Court, or has decided an important federal
question in a way that conflicts with relevant
decisions of this Court. Sup. Ct. R. 10.
Here, no such circumstances exist. No important
federal question is at issue in this case. The petition
relates to basic pleading standards under the Calli-
fornia Code of Civil Procedure. Such is a question of
state law, not federal law. Moreover, Petitioner identi-
fied no decision of a state court of last resort or
United States court of appeal that conflicts with the
California Court of Appeal’s decision in this case.
12
If anything, Petitioner argues only “erroneous
factual findings” or “the misapplication of a properly
stated rule of law,” which is rarely grounds for
granting a petition for writ of certiorari. Sup. Ct. R.
10. Furthermore, because the California Superior
Court’s and California Court of Appeal’s opinions in
this case are unreported, they lack precedential
value. Accordingly, the circumstances under which
the Supreme Court will consider granting certiorari
do not exist in this case.
C. Petitioner’s Arguments Are Insufficient
Grounds For Review.
Petitioner asserts as the basis for his petition, in
summary, as (1) “fraud upon the court” and (2)
“injustice of dismissal of his complaint.” Petition at i-
ii. Such are insufficient reasons for review. Sup. Ct.
R. 10.
1. Petitioner’s “Fraud Upon The Court”
Theory Is An Insufficient Ground For
Review.
Petitioner provides no support for the argument
that an “UNSETTLED ISSUE of FRAUD UPON THE
COURT” exists. Petition at i, 2, 6, 7. Petitioner does
not provide citations, for example, of cases in which
jurisdictions ruled differently on an issue of “fraud
upon the court.” Indeed, no such unsettled issue
exists. The pleading standards in California courts
have been firmly established by the California
13
Legislature and California Courts of Appeal. See, e.g.,
Cal. Code Civ. Proc. 8430.10(f); Donabedian v.
Mercury Ins. Co., 116 Cal.App.4th 968, 99 (2004) (a
demurrer is a pleading used to test the legal
sufficiency of other pleadings; i.e., it raises issues of
law, not fact, regarding the form or content of the
opposing party’s pleading).
Petitioner’s references to the Fourteenth Amend-
ment to the U.S. Constitution are without explana-
tion. Petition at 1, 2, 6, 7, 8, 9. Petitioner cites no
authority for the proposition that sustaining a
demurrer under the California Code of Civil Proce-
dure is a violation of the Fourteenth Amendment.
Moreover, this argument underscores that Petitioner
is merely dissatisfied with how the Court of Appeal
applied the California Code of Civil Procedure to his
case.
Petitioner’s reference to the Rooker-Feldman doc-
trine does not help him. Petition at i. The Rooker-
Feldman doctrine refers to the principle that lower
federal courts are barred from reviewing final state
court decisions dealing with federal issues, and the
U.S. Supreme Court has jurisdiction over such state
court judgments. Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923); District of Columbia Court of Ap-
peals v. Feldman, 460 U.S. 462 (1983); see also
EUGENE GRESSMAN ET AL., SUPREME COURT
PRACTICE p. 140 (9th Ed. 2008). That doctrine
addresses the issue of jurisdiction and does not re-
quire review of this case.
14
The “Fraud Recovery and Enforcement Act” has
no connection to Petitioner’s claims. Petition at 6.
Such Act was intended “to improve enforcement of
mortgage fraud, securities and commodities fraud,
financial institution fraud, and other frauds related
to Federal assistance and relief programs, for the
recovery of funds lost to these frauds, and for other
purposes.” See Preamble to Public Law 111-121. That
law does not support review of this case.
To the extent Petitioner attempts to argue that
demurrers should not be permitted in California
courts because demurrers are not permitted under
the Federal Rules of Civil Procedure, such argument
fails. See, e.g., petition at 1 (“Federal Law (FRCP
Rule 60(b) and Rule 60(b)(3) et cetera.) TRUMPS
State Law (Demurrers)”); at 7 (“FUNDAMENTAL
INEQUITY between Notice Pleadings (FRCP) and
Code Pleading (DEMURRERS)”); at 8 (““INEQUITY
IN LAW between Notice Pleadings of the Federal
FRCP, and the Demurrers in California’s Code
Pleading”); at 9 (“California’s Code Pleading DE-
MURRERS”). Petitioner cites no valid authority for
the proposition that the Federal Rules of Civil Proce-
dure, and not the California Code of Civil Procedure,
apply in California state courts. Petitioner cites no
valid authority for the proposition that California’s
code pleading standard, as opposed to the federal
notice pleading standard, is improper. Moreover, the
standard for a demurrer as stated in the California _
Code of Civil Procedure is similar to the standard for
a motion to dismiss as stated in the Federal Rules of
15
Civil Procedure. See Fed. R. Civ. Proc. 12(b)(6) (a
party may assert a defense of “failure to state a claim
upon which relief can be granted”); see also Fed. R.
Civ. Proc. 12(e) (motion for more definite statement);
Fed. R. Civ. Proc. 12(f) (motion to strike). It is un-
likely that a different outcome would have occurred if
the Federal Rule of Civil Procedure or a notice
pleading standard had been applied in this case.
2. Petitioner’s Argument Of “Injustice Of
Dismissal Of His Complaint” Is An In-
sufficient Ground For Review.
Petitioner is simply dissatisfied with how the
California Superior Court and California Court of
Appeal applied the well-settled, properly-stated law
in his case. See, e.g., petition at 6 (referring to alleged
“NON FEASANCE of the California State Courts”); at
8 (“NON FEASANCE by some Courts”); at 7 (“GROSS
INJUSTICE of Dismissal by DEMURRER”); at 9
(“NON FEASANCE by the California Courts”).
Petitioner’s argument that Respondents did not
notice the Superior Court’s order fails. Petition at vii.
Petitioner cites no authority for the proposition that a
defendant must notice an order, and indeed there is
no such authority. To the extent Petitioner is
attempting to contend that Respondents failed to
notice the hearing on the demurrer to the First
Amended Complaint, such argument fails because
16
notice was issued to Petitioner of the date, time, and
location of the hearing.
Petitioner’s argument that the Superior Court’s
order was issued two days after Petitioner’s First
Amended Complaint was filed also does not support
review of this case. Petition at 9. This allegation is
false, as the Court’s Order was issued on April 30,
2008 and Petitioner filed his First Amended Com-
plaint on May 13, 2008. Even if his factual allegation
was true (it is not), the Superior Court provided
Petitioner with opportunity to amend his pleading
and specific written instructions on how to do so.
Despite that opportunity, Petitioner did not amend
his pleading in accordance with the Superior Court’s
Order. Accordingly, Petitioner failed to establish that
review is appropriate.
D. The California Court Of Appeal’s Decision
To Affirm The Superior Court’s Order
Sustaining Respondents’ Demurrer Was
Correct.
1. Standard Of Review.
The abuse of discretion standard of review ap-
plies. Where a demurrer has been sustained without
leave to amend, the appellate court must decide
whether there is a reasonable possibility that the
defect could be cured with an amendment. Scifando v.
City of Los Angeles, 31 Cal.4th 1074, 1081 (2003);
Blank v. Kirwan, 39 Cal.3d 311, 318 (1985). Here, the
California Court of Appeal and California Superior
17
Court correctly decided that there was no reasonable
possibility that the defects in Petitioner’s pleading
could be cured.
2. Petitioner Did Not Comply With The
Superior Court’s Order Sustaining The
Demurrer To His Complaint.
Petitioner did not meet his “burden in the trial
court ... to show that the first amended complaint
could be further amended to state a cause of action.”
J.B. Aguerre, Inc. v. American Guar. and Liab. Ins.
Co., 59 Cal.App.4th 6, 18 (1997). The Superior Court
provided Petitioner opportunity to amend his initial
complaint after it sustained Respondents’ demurrers.
The Superior Court provided specific instructions
directed to Petitioner in the order to assist him. Ap-
pendix A hereto. However, Petitioner then filed his
First Amended Complaint which did not comply with
the Superior Court’s instructions and did not state a
comprehensible cause of action against Respondents.
The Superior Court provided Petitioner ample oppor-
tunity to cure the defects of his complaint and state
understandable and plausible causes of action, but
Petitioner failed to do so.
Petitioner did not file any opposition to Respon-
dents’ demurrer to Petitioner’s First Amended Com-
plaint. Petitioner declined to both oppose and seek
oral argument concerning the Superior Court’s tenta-
tive ruling sustaining the demurrers and dismissing
the case. Under such circumstances, the Superior
18
Court properly sustained the demurrer without leave
to amend.
3. The First Amended Complaint Was
Hopelessly Uncertain, Ambiguous And
Unintelligible.
A complaint is supposed to contain a “statement
of the facts constituting the cause of action, in
ordinary and concise language.” Cal. Code Civ. Proc.
§$425.10(a); see also Ankeny v. Lockheed Missiles &
Space Co., 88 Cal.App.3d 531, 537 (1979) (essential
facts upon which determination of controversy de-
pends must be stated “with clearness and precision so
that nothing is left to surmise”); Cal. Code Civ. Proc.
§430.10(f) (defendant may demur to pleading on
grounds that it is uncertain, ambiguous and unin-
telligible).
The First Amended Complaint was so uncertain,
ambiguous and unintelligible as to deprive Respon-
dents of any meaningful opportunity to respond to or
defend against them. Those paragraphs and others
were permeated with poor grammar, syntax, sentence
structure and punctuation, unexplained authorities
and code references, convoluted, hyper-technical jar-
gon and incomplete thoughts. Respondents offer the
following as just one representative example:
Plaintiff, later at about January 15, 2007, on
working on the foundation for the metal pre-
fabricated warchouse on Lay-down Area No.3,
learned that the actual metal pre-fabricated
19
warehouse that SWAT had (non-engineer)
Gerard Gazard ordered, had a footprint of 90
ft. by 180 ft. which was nearly the size of
Plaintiff’s Lay-Down-Area No. 3 Engineer
Signed and Stamped calculations and cross-
section of about November 17, 2006; exterior-
use asphalt pavement 200 ft. by 200 ft.
First Amended Complaint 7 23. Respondents were at
a loss, without speculating, to figure out what this
paragraph and many others like it are trying to
communicate, let alone how they relate to Petitioner’s
claims. Since Petitioner verified the First Amended
Complaint, Respondents were required to admit or
deny each and every allegation and verify their re-
sponse, which is impossible if Respondents cannot
understand the allegations.
At no point in any of the three causes of action
did Petitioner explain how the paragraphs he incorpo-
rates relate to the elements of the cause(s) of action
being alleged. Many of the paragraphs had no evident
substantive connection or relevance to Petitioner's
causes of action. As just a few examples, a number of
paragraphs identify various allegedly unsafe or non-
compliant conditions at Chevron’s facilities (see, e.g.,
First Amended Complaint J 24, 35-43, 45-50, 60-64);
and two multi-part paragraphs respectively contain
an excerpt from a book about avoiding individual
liability in a corporation and an entire reproduction
of an email about dangerous conditions (First
Amended Complaint 9] 26, 32), without tying these
allegations tc Petitioner’s claims for relief.
20
Additional sources of uncertainty include that
the First Cause of Action cites four different statutes,
and the First and Third Causes of Action contain
unexplainable references to California Corporations
Code §§27101 and 27200, which have no apparent
application to this lawsuit. In summary, the First
Amended Complaint was so riddled with ambiguous,
unintelligible material that Respondents are once
again precluded from knowingly responding accu-
rately. As Petitioner changed virtually nothing in his
second attempt to draft a complaint, the First
Amended Complaint was dismissed with prejudice.
4. Petitioner Failed To State A Cause
Of Action For Wrongful Termination
Against Any Of Respondents.
To establish a claim for wrongful termination in
violation of public policy, Petitioner must prove,
among other elements, that he was in an employer-
employee relationship and that his employment
was terminated in violation of an important public
policy. See Holmes v. General Dynamics Corp., 17
Cal.App.4th 1418, 1426 (1993). The public policy
must be embodied in a statutory or constitutional
provision. Green v. Ralee Engineering Co., 19 Cal.4th
66, 79 (1998). It ic the plaintiff ’s burden to allege the
specific statute(s) on which the claim is based. /d.
at 84.
21
a. Petitioner Did Not Allege The Facts
Predicate For His Claim Against
S.W.A.T., Eddy Wu And Steve Tang.
Petitioner’s First Cause of Action appears to al-
lege that the statutory basis for his wrongful termi-
nation claim against Respondents S.W.A.T., Eddy Wu
and Steve Tang is California Labor Code §6310(a)(2).”
See First Amended Complaint { 74. This claim failed
because nowhere in the First Amended Complaint
did Petitioner allege that he had instituted, or was to
testify in, any proceeding, or that he had exercised
any rights under §6310, prior to his termination.
Without such factual allegations, there was no basis
for Petitioner’s allegation that his termination some-
how violated the public policy expressed in §6310(a\2).
b. Petitioner’s First Cause Of Action
May Not Be Brought Against Re-
spondents Eddy Wu And Steve Tang.
Petitioner attempted to hold two of the individual
Respondents personally liable for his allegedly wrong-
ful termination from employment with S.W.A.T. in
* Section 631a)(2) provides.
“(a) No person shall discharge or in any manner dis-
criminate against any employee because the employee
has done any of the following’ . (2) Instituted or
caused to be instituted any proceeding under or re-
lating to his or her rights or has testified or 1s about to
testify in the proceeding or because of the exercise by
the employee on behalf of himself, herself, or others of
any rights afforded him or her.”
22
violation of public policy. Petitioner alleged that Re-
spondents Eddy Wu and Steve Tang are each mana-
gers working for S.W.A.T., but nowhere alleged that
they were his employer in their individual capacities.
First Amended Complaint {{ 7, 11, 12.
Individual managers of a company are not con-
sidered “employers” and therefore may not be held
personally liable for the tort of wrongful termination
in violation of public policy. Reno v. Baird, 18 Cal.4th
640, 663-664 (1998); see also Khajavi v. Feather River
Anesthesia Medical Group, 84 Cal.App.4th 32, 53
(2000); Phillips v. Gemini Moving Specialists, 63
Cal.App.4th 563, 576 (1998); Jacobs v. Universal
Development Corp., 53 Cal.App.4th 692, 704 (1997);
Weinbaum v. Goldfarb, Whitman & Cohen, 46
Cal.App.4th 1310, 1315 (1996) (individuais who are
not employers are “legally incapable” of committing
the tort of wrongful termination in violation of public
policy).
c. Petitioner’s First Cause Of Action
Failed As Against Chevron, Which
Was Not Petitioner’s Employer.
Petitioner’s First Cause of Action may only be
brought against Petitioner’s employer. See Khajavi,
84 Cal.App.4th at 53 (“As a matter of law, only an
employer can be liable for the tort of wrongful
discharge in violation of public policy.”). The First
Amended Complaint conveyed the arrangement
that Chevron contracted with S.W.A.T. to perform
23
engineering services at its Richmond refinery, and
that Petitioner was the employee whom S.W.A.T. as-
signed to perform some of that work, for which Chev-
ron paid S.W.A.T. by the hour (hence, the time sheets
Petitioner filled out). Petitioner nowhere alleged in
the First Amended Complaint that Chevron was
Petitioner’s employer, nor did he allege facts from
which it could be inferred that Chevron was
Petitioner’s employer.
To the contrary, Petitioner alleged in the First
Amended Complaint that S.W.A.T. (and only S.W.A.T.)
interviewed him (First Amended Complaint { 7);
hired him (First Amended Complaint 4 11); deter-
mined his duties and assignments (First Amended
Complaint 77 11-12, 33, 45, 47, 57); commented on
his work (First Amended Complaint { 18); held “staff
meetings” that Petitioner attended (First Amended
Complaint 7] 21-22, 65); reached agreement on and
paid his salary, but failed to pay all of it (First
Amended Complaint 471); and fired him (First
Amended Complaint 4 30). The First Amended Com-
plaint also variously identified Petitioner as “SWAT
Francisco Molina Jr.” and “SWAT terminated
Molina.” First Amended Complaint {7 22, 31. Thus,
Petitioner’s own allegations pointed to only one
possible employer: S.W.A.T.
24
5. Petitioner May Not Recover Allegedly
Underpaid Wages From Marian Tang.
As with most of Petitioner’s allegations, it was
difficult to discern what theory Petitioner relies on for
his Third Cause of Action, brought against only
defendant Marian Tang, S.W.A.T.’s Office Manager.
See First Amended Complaint 499, 80. The claim
was entitled “Conversion of Wages,” but it included a
parenthetical citation to Corporations Code §§27101
and 27200 (see First Amended Complaint 7 80), which
deal with fraud, deceit or conversion by a person in
connection with the solicitation, receipt or collection
of money from the holder of a security for the purpose
of protecting, enforcing or representing the rights of
the security owner. None of Petitioner’s allegations
made any sense of his citation of these sections of the
Corporations Code.
Petitioner also incorporated by reference into the
Third Cause of Action several paragraphs that have
something to do with recording time (beyond that,
they are indecipherable) and receiving less than the
pro-rated amount of his annual salary for the three
months he allegedly worked in 2007. See First
Amended Complaint 482, incorporating 4 67-71.
The incorporated paragraphs of the Third Cause of
Action did not allege any acts by Marian Tang that
stated a claim for conversion by her.
Under most circumstances, individual agents of
corporations are not liable for alleged unpaid wages.
See Reynolds v. Bement, 36 Cal.4th 1075, 1087-1088,
25
1091 (2005) (none of plaintiff ’s various statutory and
tort causes of action supplanted the common law rule
that corporate agents acting within the scope of their
agency are not personally liable for the corporate
employer’s failure to pay wages, whether on a tort or
contract theory); Jones v. Gregory, 137 Cal.App.4th
798, 805 (2006) (reaching the same result as Reynolds
with a plaintiff suing under various different statu-
tory causes of action from those at issue in Reynolds).
Petitioner alleged that each defendant was acting as
the agent or employee of the others while committing
the acts alleged in the First Amended Complaint.
First Amended Complaint { 2.
The possible exceptions to the common law rule
recognized by Reynolds include established common
law theories and statutes that clearly provide for
individual liability. See Reynolds, 36 Cal.4th at 1089.
But Petitioner did not cite any statute that clearly
makes individual agents of corporations liable for
payment of wages. Further, Reynolds made it clear
that in order to hold an individual agent liable in tort
for unpaid wages, the plaintiff would have to show
that the individual personally gained from his or her
wrongdoing. Jd. at 1091 (to hold individual agent lia-
ble for conversion of wages, the individual must have
misappropriated the wages owed for his or her own
individual advantage). Not only did Petitioner not
allege that Marian Tang misappropriated his unpaid
wages for her own advantage — he did not even allege
that either of the corporate Respondents did so. Nor
has Petitioner alleged that Marian Tang is the alter
26
ego of S.W.A.T. or any supporting factual basis for
such an assertion.
Petitioner simply made the accusation that
Marian Tang is personally liable for damages for
conversion. First Amended Complaint {4 80, 83. The
Court is not bound by “contentions, deductions or
conclusions of fact or law” in the Complaint. Blank v.
Kirwan, 39 Cal.3d 311, 318 (1985). Petitioner did not
state a claim for holding Marian Tang liable for the
alleged underpayment of his compensation under any
theory.
6. The Second Cause Of Action For Fraud
And Deceit Was Inadequately Pied.
To allege a valid cause of action for fraud, a
plaintiff must plead the following elements with
specificity: (1) a misrepresentation, (2) knowledge of
its falsity, (3) intent to defraud, (4) justifiable reliance
and (5) resulting damage. Gil v. Bank of America,
N.A., 138 Cal.App.4th 1371, 1381 (2006) (“Every
element of the cause of action for fraud must be
alleged in the proper manner (i.e. factually and
specifically), and the policy of liberal construction
of the pleadings ... will not ordinarily be invoked
to sustain a pleading defective in any material
respect.”).
The allegations incorporated into Petitioner’s
Second Cause of Action for “Fraud and Deceit” failed
to state the elements of a fraud claim and lacked the
requisite specificity to apprise the Respondents and
27
the Court of the circumstances supporting the fraud
claim, such as who made what representation(s) to
Petitioner and when; facts showing an intent to
deceive and knowledge of falsity or recklessness as to
truth at the time of the representation(s); and what
harm Petitioner allegedly suffered in relying on the
representation(s). See id. (upholding sustained de-
murrer as to fraud cause of action because complaint
did not allege every element of the cause of action
factually and specifically).
The paragraphs Petitioner’s Second Cause of
Action incorporated related to the establishment of
his employment relationship with S.W.A.T. and alle-
gations about Chevron facilities not meeting certain
building codes or standards. There was also one
mysterious allegation (First Amended Complaint
{ 32) incorporated by reference in which Petitioner
quoted from a book on how to avoid personal liability
as an agent of a corporation. These allegations failed
to state even one element of a fraud claim, either in
conclusion or specifically, let alone al] five elements.
7. Petitioner’s Demands For Punitive
Damages Were Unsupported.
California Civil Code §3295(e) provides that
“[Injo claim for exemplary damages shall state an
amount or amounts.” The First Amended Complaint
asserted that the amount in controversy in this case
“exceeds” $8 million, exclusive of interest and costs.
See First Amended Complaint 95. The amounts
28
Petitioner claimed in actual damages total approxi-
mately $4.6 million (see First Amended Complaint
44 75{1-3], 79[(7], 83[10]), which must mean the re-
maining $3.4 million was being demanded as punitive
damages. As First Amended Complaint Paragraph 5
violated California Civil Code §3295\e), it was im-
proper. See Code Civ. Pro. §436(b).
In fact, Petitioner’s demands for punitive dam-
ages, even in an unspecified amount, was improper.
California Civil Code §3294(a) sets forth the cir-
cumstances under which a plaintiff might be entitled
to punitive damages, as follows:
“In an action for breach of an obligation not
arising from contract, where it is proven by
clear and convincing evidence that the defen-
dant has been guilty of oppression, fraud, or
malice, express or implied, the plaintiff, in
addition to the actual damages, may recover
damages for the sake of example and by way
of punishing the defendant.”
To recover punitive damages, a plaintiff must allege
specific facts indicating evil motive and intent to
injure on the part of the defendant, not mere conclu-
sions. Ebaugh v. Rabkin, 22 Cal.App.3d 891, 894-895
(1972) (defendant must have “intent to vex, annoy or
injure. Mere spite or ill will is not sufficient; and
mere negligence, even gross negligence, is not suffi-
cient to justify an award of punitive damages”).
Here, the First Amended Complaint failed to
state specific facts showing the requisite level of
malice and intent to injure on the part of any of the
29
Respondents. It was difficult to discern from the First
Amended Complaint exactly what each defendant did
that is allegedly wrongful, let alone perpetrated with
an evil motive and intent to injure.
,
vv
CONCLUSION
For the reasons set forth herein, Respondents
respectfully request that Petitioner’s request for a
writ of certiorari be denied in its entirety.
Dated: January 19, 2010
Respectfully submitted,
JEFFREY L. ADAMS
(Counsel of Record)
LisA C. CHAGALA
For Respondents Chevron
Products Company, a division
of Chevron U.S.A., Inc.,
S.W.A.T: Energy, Inc.,
Steve Tang, Eddy Wu,
and Marian Tang
LITTLER MENDELSON, P.C.
1255 Treat Blvd., Suite 600
Walnut Creek, California 94597
(925) 932-2468
App. l
APPENDIX A
JEFFREY L. ADAMS, Bar No. 148393
CODY JAFFE, Bar No. 215301
LITTLER, MENDELSON
A Professional Corporation
Treat Towers
1255 Treat Boulevard
Suite 600
Walnut Creek, CA 94597
Telephone: 925.932.2468
Fax No.: 925.946.9809
Attorneys for Defendants
CHEVRON U.S.A. INC.
SWAT ENERGY, INC.
STEVE TANG
EDWARD WU
MARIAN TANG
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
FRANCISCO MOLINA, JR.,
Plaintiff,
Vv.
S.WAT. ENERGY, [INC.,
STEVE TANG, Director,
EDWARD WU, CEO Director,
MARIAN TANG, Office Man-
ager, Director, CHEVRON
PRODUCTS COMPANY, a
Division of CHEVRON U.S.A.,
INC., and DOES 1 through
10, inclusive,
Defendants.
Case No.
CIV MSC07-02846
ASSIGNED FOR ALL
PURPOSES TO THE
HONORABLE JUDITH
CRADDICK, DEPT. 9
[PROPOSED] /s/ [JC]
ORDER SUSTAINING
DEMURRER TO
PLAINTIFF’S ENTIRE
COMPLAINT WITH
LEAVE TO AMEND
App. 2
(Filed Apr. 30, 2008)
Date: April 15, 2008
Time: 9 a.m.
Dept.: 9
Complaint Filed:
December 27, 2007
Trial Date: TBD
The Demurrers and Motions to Strike of
defendants Chevron U.S.A. Inc., Steven Tang, Marian
Tang and Eddy Wu (collectively, “Defendants”), and
the Motion to Quash Chevron’s Demurrer and Motion
to Strike of Plaintiff Francisco Molina, Jr., came on
for hearing on April 15, 2008, in Department 9 of the
above-entitled Court.
The Court having considered the papers filed in
support of and in opposition to the parties’ motions,
and the Court having issued a tentative ruling on
April 14, 2008, and the parties having submitted to
the Court’s tentative ruling, and good cause ap-
pearing therefore,
IT IS HEREBY ORDERED AS FOLLOWS:
1. Defendants’ special demurrers are sustained
with leave to amend, as to the entire complaint and as
to each cause of action within the complaint (Cal.
Code Civ. Proc., section 430.10, subd. (f). See also,
Cal. Code Civ. Proc., section 425.10, subd. (a).) The
complaint is “ambiguous,” in that it is difficult to tell
which of the lengthy introductory allegations apply to
each 1 of the named defendants, and to each cause of
App. 3
action. (Cal. Code Civ. Proc., section 430.10, subd. (f).)
The complaint is also ambiguous as to whether
plaintiff is attempting to state a fraud cause of action;
the complaint includes references to section 1572 of
the California Civil Code, but there is no separately
captioned fraud cause of action. Finally, the length of
the recitation of background facts in the introductory
allegations, the confusing wording of those allega-
tions, the references to legal authorities such as Nolo
Press publications and attorney general opinions, and
the overall method of the complaint’s organization,
render the complaint “unintelligible” within the
meaning of the special demurrer statute. (/d.)
2. Defendants’ general demurrers are moot in
light of the above ruling.
3. Plaintiff shall file and serve any amended
complaint on or before May 15, 2008. Plaintiff may
wish to consider obtaining legal assistance in drafting
any amended complaint. Any amended complaint
shall comply fully with each of the following re-
quirements:
a. Plaintiff shall state each cause of action
against one named defendant separately from the
causes of action stated against the other named
defendants; plaintiff shall not join multiple named
defendants in one cause of action. Plaintiff may
include DOE defendants in any cause of action
against a named defendant.
b. Plaintiff shall not combine multiple
legal theories in a single cause of action. Thus, for
App. 4
example, a cause of action for fraud should not be
combined with a cause of action for conversion.
c. The caption for each cause of action shall
comply with rule 2.112 of the California Rules of
Court.
d. The introductory allegations preceding
the First Cause of Action, currently paragraphs 1
through 71, shall be limited to allegations identifying
plaintiff and the defendants, and showing that
Contra Costa County is the proper venue for this
action. Each cause of action after the introductory
allegations should contain only the necessary sub-
stantive allegations specifically relevant to that cause
of action.
e. All allegations of the complaint shall be
stated “in ordinary and concise language.” (Cal. Code
Civ. Proc., section 425.10, subd. (a).) Plaintiff should
allege only the ultimate facts essential to each cause
of action, and not a lengthy recitation of background
evidentiary facts.
f. All allegations shall be set forth in clearly
numbered paragraphs.
g. The demand for relief in each cause of
action shall comply with section 425.10 of the Code of
Civil Procedure.
h. Plaintiff shall not cite or quote legal
authorities within the text of the complaint, except
as follows: plaintiff may cite (without quoting) the
App. 5
statutes relevant to a given cause of action or claim
for relief.
4. Defendants’ motions to strike are moot in
light of the Court’s ruling on the companion de-
murrers. For Defendants’ future reference, the Court
notes that it is not inclined to consider lengthy
motions to strike language that is merely irrelevant
or conclusory. The Court is inclined to consider mo-
tions to strike only insofar as they are directed to
improper remedies, language that is genuinely in-
flammatory, and the like.
5. Plaintiff’s motion to quash defendant Chev-
ron’s demurrer and motion to strike is denied.
Defendant Chevron timely served notice of the date,
time, and place of the hearing on its demurrer and
motion to strike. Also, plaintiff had ample time to
prepare substantive opposition papers after he ascer-
tained this information.
6. All requests for sanctions are denied.
IT IS SO ORDERED:
Dated: April 25, 2008 /s/ [Illegible] Judith Craddick
THE HONORABLE
JUDITH CRADDICK
APPROVED AS TO FORM: HELD 10 DAYS
Dated: April __, 2008
FRANCISCO MOLINA, JR.
Plaintiff in propria persona
App. 6
APPENDIX B
JEFFREY L. ADAMS, Bar No. 148393
CODY JAFFE, Bar No. 215301
HARRY DECOURCY, Bar No. 230516
LITTLER MENDELSON
A Professional Corporation
Treat Towers
1255 Treat Boulevard
Suite 600
Walnut Creek, CA 94597
Telephone: 925.932.2468
Fax No.: 925.946.9809
Attorneys for Defendants
CHEVRON U.S.A. INC.
SWAT ENERGY, INC.
STEVE TANG
EDWARD WU
MARIAN TANG
SUPERIOR COURT OF
THE STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
FRANCISCO MOLINA,
JR.,
Plaintiff,
V.
S.W.A.T. ENERGY, INC.,
STEVE TANG, Director,
EDWARD WU, CEO
Director, MARIAN TANG,
Office Manager, Director,
Case No.
CIV MSC07-02846
ASSIGNED FOR ALL
PURPOSES TO THE
HONORABLE JUDITH
CRADDICK, DEPT. S$
{PROPOSED} /s/[Ilegible]
ORDER GRANTING
DEMURRER AND
App. 7
CHEVRON PRODUCTS |MOTION TO STRIKE
COMPANY, a Division of |PORTIONS OF FIRST
CHEVRON U:.S.A., INC., |AMENDED COM-
and DOES 1 through 10, |PLAINT; MOTION TO
inclusive, STRIKE; DEMURRER
TO FIRST AMENDED
Defendants. COMPLAINT
(Filed Aug. 14, 2008)
Date: July 29, 2008
Time: 9:00 a.m.
Dept.: 9
Complaint Filed:
December 27, 2007
Trial Date: TBD
The Demurrer and Motion to Strike Portions of
First Amended Complaint; Motion to Strike; and De-
murrer to First Amended Complaint (“the Demurrer”)
filed by Defendants CHEVRON U.S.A. INC., SWAT
ENERGY, INC., STEVE TANG, EDWARD WU and
MARIAN TANG (“Defendants”) came on for hearing
on July 29, 2008 in Department 9 of the above-
entitled Court.
The Court, having considered the papers filed in
support of the Demurrer, including Defendants’ No-
tice of Non-Opposition to Demurrer and Motion to
Strike Portions of First Amended Complaint, and the
Court having issued a tentative ruling on July 28,
2008 and no party having notified the Court of its
intention to contest the tentative ruling, and for good
cause appearing:
App. 8
IT IS HEREBY ORDERED AS FOLLOWS:
Defendants’ special demurrers are sustained
without leave to amend, as to the entire complaint,
and as to each cause of action within the complaint.
(Cal. Code Civ. Proc., section 430.10, subd. (f).)
Despite an opportunity to amend, and despite the
detailed explanation in the Court’s previous ruling of
the pleading defects that plaintiff needed to address,
plaintiff’s First Amended Complaint is impermissibly
“uncertain” in most of the same respects as the
original complaint.
Defendants’ general demurrers are also sustained
without leave to amend, as to the entire complaint,
and as to each cause of action within the complaint.
(Cal. Code Civ. Proc., section 430.10, subd. (e).)
Despite the confusing nature of the First Amended
Complaint, the Court has made a reasonable effort to
evaluate those allegations specifically referenced
under the headings for individual causes of action.
Based on this evaluation, the Court finds as follows:
(1) the First Cause of Action does not state facts
sufficient to constitute a cause of action for wrongful
termination in violation of public policy (FAC,
paragraphs 72 through 75);
(2) the Second Cause of Action does not state
facts sufficient to constitute a cause of action for
fraud (FAC, paragraphs 76 through 79), and;
App. 9
(3) the Third Cause of action does not state
facts sufficient to constitute a cause of action for con-
version (FAC, paragraphs 80-83).
This action is hereby dismissed with prejudice.
All future hearing dates in this action are hereby
vacated.
In light of the ruling above on Defendants’
demurrers, Defendants’ motions to strike are moot.
IT IS SO ORDERED:
Dated: 8/8/08 /s/ (INegible] Judy Craddick
THE HONORABLE
JUDY CRADDICK
APPROVED AS TO FORM:
Dated:
FRANCISCO MOLINA, JR.
Plaintiff in propria persona
App. 10
APPENDIX C
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
FRANCISCO MOLINA, JR.,
Petitioner,
V.
THE SUPERIOR COURT OF
CONTRA COSTA COUNTY,
Respondent;
CHEVRON U.S.A., INC et ai.,
Real Parties in Interest.
THE COURT:*
A122609
(Contra Costa County
Super. Ct. No.
CIV MSC07-02846)
The petition for a writ of mandate and/or prohi-
bition is denied.
Dated: SEP 11 2008 /s/ McGuiness, P.J. P.J.
* McGuiness, P.J. & Siggins, J.
App. ll
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
FIRST APPELLATE DISTRICT
DIVISION THREE
FRANCISCO MOLINA, JR.,
Plaintiff and Appellant, A122508
= (Contra Costa County
S.W.A.T. ENERGY, INC., Super. Ct. No.
et al., C07 02846)
Defendants and (Filed Jun. 29, 2009)
Respondents.
Plaintiff Francisco Molina, Jr., appearing in
propria persona on appeal as he did in the trial court,
appeals from a judgment dismissing his first
amended complaint following the entry of an order
sustaining without leave to amend a special demurrer
by defendants S.W.A.T. Energy, Inc., Chevron
Products Company and individuals Edward Wu,
Steve Tang and Marian Tang. He contends that the
App. 12
court erred in sustaining the demurrer on the ground
of uncertainty under Code of Civil Procedure section
430.10, subdivision (f).' We affirm.
Background
On December 27, 2007, plaintiff filed a complaint
against defendants for damages arising out of his
alleged wrongful termination. On April 3C, 2008, the
court sustained defendants’ demurrer to _ the
complaint with leave to amend. The order explains,
“The complaint is ‘ambiguous,’ in that it is difficult to
tell which of the lengthy introductory allegations
apply to each of the named defendants, and to each
cause of action. [Citation.] The complaint is also
ambiguous as to whether plaintiff is attempting to
state a fraud cause of action; the complaint includes
references to section 1572 of the California Civil
Code, but there is no separately captioned fraud
cause of action. Finally, the length of the recitation of
background facts in the introductory allegations, the
confusing wording of those allegations, the references
to legal authorities such as Nolo Press publications
and attorney general opinions, and the overall
method of the complaint’s organization, render the
complaint ‘unintelligible’ within the meaning of the
special demurrer statute.” The order advised plaintiff
that he “may wish to consider obtaining legal
assistance in drafting any amended complaint” and
‘ All statutory references are to the Code of Civil Procedure.
App. 13
instructs that “[aJny amended complaint shall comply
fully with each of the following requirements: [{] a.
Plaintiff shall state each cause of action against one
named defendant separately from the causes of action
stated against the other named defendants; plaintiff
shall not join multiple named defendants in one cause
of action.... [9] b. Plaintiff shall not combine
multiple legal theories in a single cause of action.
Thus, for example, a cause of action for fraud should
not be combined with a cause of action for conversion.
[¥] c. The caption for each cause of action shall
comply with rule 2.112 of the California Rules of
Court. [¥] d. The introductory allegations preceding
the First Cause of Action, currently paragraphs 1
through 71, shall be limited to allegations identifying
plaintiff and the defendants, and showing that
Contra Costa County is the proper venue for this
action. Each cause of action after the introductory
allegations should contain only the _ necessary
substantive allegations specifically, relevant to that
cause of action. [{] e. All allegations of the complaint
shall be stated ‘in ordinary and concise language.’
[Citation.] Plaintiff should allege only the ultimate
facts essential to each cause of action, and not
lengthy recitation of background evidentiary facts. []
f. All allegations should be set forth in clearly
numbered paragraphs. [4] g. The demand for relief in
each cause of action shall comply with section 425.10
of the Code of Civil Procedure. [4] h. Plaintiff shall
not cite or quote legal authorities within the text of
the complaint, excepts [sic] as follows: plaintiff may
App. 14
cite (without quoting) the statute relevant to a given
cause of action or claim for relief.”
On May 13, 2008, plaintiff filed his first amended
complaint, which alleges causes of action for wrongful
termination in violation of public policy, fraud and
conversion. On June 12, 2008, defendants filed a
demurrer and motion to strike the first amended
complaint. Defendants argued again that the
amended complaint was uncertain within the
meaning of section 430.10, subdivision (f) and that
the amended complaint failed to comply with the
requirements previously set forth by the trial court.
Plaintiff did not file an opposition to the demurrer
nor did he contest the court’s tentative ruling
sustaining the demurrer. On July 29, 2008, the court
adopted its tentative ruling and sustained without
leave to amend defendants’ demurrer under section
430.10, subdivision (f). The court explained, “Despite
the opportunity to amend, and despite the detailed
explanation in the court’s previous ruling of the
pleading defects that plaintiff needed to address,
plaintiff’s first amended complaint is impermissibly
‘uncertain’ in most of the same respects as the
original complaint.” Judgment was entered in favor
* The court also sustained the demurrer under section
430.10, subdivision (e), stating, “Despite the confusing nature of
the first amended complaint, the court has made a reasonable
effort to evaluate those allegations specifically referenced under
the headings for individual causes of action.” Based on this
evaluation, the court found that the amended complaint did not
state facts sufficient to state a cause of action for wrongful
(Continued on following page)
App. 15
of defendants on September 24, 2008. This appeal
followed.
Discussion
Section 430.10, subdivision (f) authorizes a party
against whom a complaint has been filed to object by
special demurrer to the pleading on the ground that
“(tlhe pleading is uncertain. As used in this
subdivision, ‘uncertain’ includes ambiguous and
unintelligible.” A demurrer for uncertainty may be
sustained when the complaint is drafted in a manner
that is so vague or uncertain that the defendant
cannot reasonably respond, e.g., the defendant cannot
determine what issues must be admitted or denied, or
what causes of action are directed against the
defendant. (Khoury v. Maly’s of California, Inc. (1993)
14 Cal.App.4th 612, 616; Weil & Brown, Cal. Practice
Guide: Civil Procedure Before Trial (The Rutter
Group 2008) 4 7:85.)
On appeal from a judgment dismissing a
complaint after a demurrer is sustained without leave
to amend, we review de novo the trial court’s decision
to sustain the demurrer, and we review under the
abuse of discretion standard the decision to deny the
plaintiff leave to amend. (Lazar v. Hertz Corp. (1999)
termination in violation of public policy, fraud or conversion.
Because we conclude that the demurrer was properly sustained
without leave to amend on the ground of uncertainty, we do not
consider this alternative ground.
App. 16
69 Cal.App.4th 1494, 1501.) In determining whether
the court properly sustained the demurrer without
leave to amend, this court decides whether there is a
reasonable possibility an amendment could cure the
pleading defect. (Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081.) The plaintiff bears the
burden of proving there is a reasonable possibility an
amendment would cure the defect. (bid. )
We agree with the trial court’s determination
that the first amended complaint is uncertain within
the meaning of section 430.10, subdivision (f). As the
court observed, the lengthy recitation of background
evidentiary facts is rambling, confusing, drafted in
incomplete sentences and thoughts and generally
disorganized. Contained within the litany of
unrelated facts are random and unexplained citations
and quotations from various legal authorities. More
importantly, it is difficult to determine with
reasonable reliability what allegations are made
against each defendant and what facts form the
alleged basis of what cause of action. As defendants
note, “Since [plaintiff] verified the [first amended
complaint], [defendants] would be required to admit
or deny each and every allegation and verify their
response which is impossible if [they] cannot
understand the allegations.” While plaintiff is correct
that a demurrer based on uncertainty should be
strictly construed (Khoury v. Maly’s of California,
Inc., supra, 14 Cal.App.4th at p. 616), the uncertainty
in this case is not, as plaintiff suggests, directed at
inconsequential matters and the ambiguity does not
App. 17
involve facts “presumptively within the [defendants/
knowledge.” Rather, the level of uncertainty is
sufficient to reasonably prevent defendants from
filing a responsive pleading.
Plaintiff’s briefs on appeal are _ similarly
unintelligible and fail to comply with rule 8.204 of the
California Rules of Court. Plaintiff fails to “[s]tate
each point under a separate heading or subheading
summarizing the point, and support each point by
argument and, if possible, by citation of authority.”
(Cal. Rules of Court, rule 8.204(a).) For example,
plaintiff’s opening brief states without elaboration:
“Plaintiff asserts that he was denied a ‘DAY IN
COURT on the MERITS’ for which [he] duly requests
a REVERSAL and a REMAND ‘FAIR TRIAL’ as to
the July 10, 2008 discovered FRAUD UPON THE
COURT and subsequently documented in several
motions between July 10, 2008 and July 29,
2008....” The next sentence reads, “The order of
dismissal of August 14, 2008, page 2 line 23, 24 ‘All
future hearing dates in this action are hereby
vacated.’ is very disturbing because admissions
deemed entered on Chevron U.S.A. Inc., SWAT
Energy Inc and Steve Tang issues in light of the
FRAUD UPON THE COURT have been forestalled,
first by the court dates set by the court clerks, clerks,
and now the trial judge.” Plaintiff provides no
additional explanation demonstrating what relevance
any of these orders have to the ruling on the
demurrer.
App. 18
Plaintiff asserts in his “summary conclusion,”
also without explanation, that “(t]he trial court
abused its discretion in sustaining a demurrer
without leave to amend even though no request to
amend such a pleading was made.” We disagree.
When the trial court sustained the demurrer to
plaintiff’s original complaint, it provided him with
clear instructions for the amended complaint. Despite
the court’s assistance, plaintiff’s amended complaint
remains equally unintelligible. Plaintiff did not
oppose the demurrer in the trial court. He did not
appear at the hearing to request leave to amend or to
offer an explanation for his failure to comply with the
court’s prior ruling. Moreover, plaintiff has not
suggested how his complaint might be amended to
cure the defects identified by the court. The trial
court could reasonably conclude that even if it gave
plaintiff an additional opportunity to amend there is
no reasonable possibility that he would file an
intelligible complaint. (See Taliaferro v. Prettner
(1955) 1385 Cal.App.2d 157, 160 (“The courts are, and
should be, liberal in allowing pleadings to be
amended, but when, as here, the court reasonably
concludes that the plaintiff has made no real effort to
comply with the permission once given him to amend
his complaint, the amended complaint becomes
nothing but a sham. The court is not required to give
him another opportunity”); Brenner v. City of El
Cajon (2003) 113 Cal.App.4th 434, 444 [failure to
provide a proposed amendment or advanced on
appeal any allegation that might cure the defects in
amended complaint supports the trial court’s order
App. 19
denying leave to amend].) Accordingly, the trial court
did not abuse its discretion in sustaining the
demurrer without leave to amend.
Disposition
The judgment is affirmed. Defendants shall
recover their costs on appeal.
Pollak, J.
We concur:
McGuiness, P.J.
Siggins, J.
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