Filed 3/20/15 Gabel v. Kumho Tire 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



JOSHUA GABEL,

         Plaintiff and Appellant,                                        E058981

v.                                                                       (Super.Ct.No. CIVRS1109285)

KUMHO TIRE U.S.A., INC. et al.,                                          OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of San Bernardino County. Keith D. Davis,

Judge. Affirmed.

         Joshua Gabel, in pro. per., for Plaintiff and Appellant.

         Lim, Ruger & Kim, Lisa J. Yang and Phillip K. Cha for Defendant and

Respondent Kumho Tire U.S.A., Inc.

         Maranga Morgenstern, Robert A. Morgenstern, Ninos Saroukhanioff and Dennis

S. Newitt for Defendant and Respondent Werner Enterprises, Inc.



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                                             I

                                    INTRODUCTION

       Plaintiff and appellant Joshua Gabel appeals from a judgment of dismissal entered

after the trial court sustained without leave to amend the demurrers to the third amended

complaint (TAC) brought by defendants and respondents Werner Enterprises, Inc.

(Werner) and Kumho Tire U.S.A., Inc. (Kumho). In 2008 and 2009, Gabel was an

employee of Werner, providing logistical and transportation services to Werner’s

customer, Kumho. After the Kumho project ended, Werner offered Gabel alternative

employment in Pennsylvania which he refused. Werner then terminated Gabel’s

employment on January 30, 2009. Acting as his own lawyer, Gabel made three

unsuccessful attempts to amend his complaint.

       Based on our independent review, we conclude Gabel cannot state a cause of

action against defendants. Although he appears to have been poorly treated, most of his

claims are either untimely or subject to an exclusive remedy. His seventh cause of action

is uncertain, ambiguous, and unintelligible. We affirm the judgment.

                                             II

                  FACTUAL AND PROCEDURAL BACKGROUND

A. The Second Amended Complaint

       The original complaint was filed on October 21, 2011. It was a two-page form

complaint against Kumho, making entirely conclusory allegations of general negligence,

discrimination, sexual harassment, retaliation, and intentional infliction of emotional

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distress. An amended pleading was filed on November 1, 2011, adding Werner as a

defendant.

       Before serving defendants, Gabel filed a motion for leave to file a second amended

complaint (SAC). The court warned Gabel of the “perils of self-representation,” advised

him to contact the bar association, and provided him with an informational handout.

Gabel said he was trying to find an attorney on contingency. The court granted the

motion for leave to file the SAC and ordered Gabel to serve defendants. Subsequently,

after the court granted Werner’s motion to quash service, it again “encourage[d]” Gabel

to obtain counsel. Gabel finally served both defendants personally in August 2012.

       The SAC was a form complaint for breach of contract, fraud, general negligence,

intentional tort, discrimination, sexual harassment, and professional negligence, seeking

damages of $860,000 and expungement of offenses from his driving record. The

complaint is 126 pages and unorthodox in its construction. Because Gabel is representing

himself, his SAC “is not in the form to which courts are accustomed.” (Fleet v. Bank of

America N.A. (2014) 229 Cal.App.4th 1403, 1406.)

       The SAC incorporates documents from Gabel’s FEHA1 complaint for

discrimination, including a written narrative, in which Gabel recites that he was hired by

Werner in October 2006 to work for two years in Grants Pass, Oregon. In March 2008,


       1 California Fair Employment and Housing Act (FEHA), Government Code
section 12900 et seq.



                                             3
he was offered another position in Rancho Cucamonga, California, providing logistics

and transportation services to Kumho, and he signed a relocation agreement with Werner.

On April 19, 2008, Werner hired him as a dedicated transportation manager earning

$41,000 annually, plus a $1,000 monthly bonus. On December 28, 2008, Kumho

cancelled its contract with Werner. Werner offered Gabel alternative employment in

Pennsylvania which he rejected. While working for Werner and Kumho, Gabel was

sexually harassed by Kumho employees from April 19, 2008, until January 30, 2009,

when he was terminated based on his status as a homosexual man. Gabel was given a

FEHA notice of case closure and right-to-sue letter on October 21, 2010, for Kumho and

another notice and letter for Werner on January 3, 2011.

       Fourteen pages of the SAC contain more elaborate descriptions of the incidents

Gabel purportedly suffered at Kumho, including being called a monkey; questioned about

his marital status and whether he was gay; denied proper work access, salary, and

commissions; not recognized on his birthday; and forced to witness third-party

harassment. Gabel attached 20 pages of Werner and Kumho’s “Schedule of Contract

Rates and Terms for Dedicated Fleet Operations.” He also attached his apartment lease,

the relocation agreement, emails, and other miscellaneous documents. He included a

statement about his prostate cancer, his homelessness, and his inability to secure

employment.




                                             4
       Defendants demurred to the SAC. The court sustained the demurrers with leave to

amend, warning that “[t]his will be the last leave to amend the Court will grant. [¶] The

court encourages Plaintiff to seek legal assistance.”

B. The TAC

       In the TAC, Gabel adopts a more conventional legal style. He asserts seven

causes of action, based mainly on the 2008 relocation agreement between Gabel and

Werner: 1) misrepresentation in violation of Labor Code sections 970, 971, and 972; 2)

third-party breach of contract between Werner and Kumho; 3) fraud; 4) breach of the

covenant of good faith and fair dealing; 5) negligence caused when Kumho’s president

put his hands on Gabel’s shoulders and around his neck; 6) promissory estoppel; and 7)

employment discrimination based on “marital status, sex, national origin/ancestry-

English language, and career status/job assignment based on quid pro quo and the

creation of a hostile work environment.” Examples of the latter were calling Gabel a

monkey; questioning his marital status and whether he was gay; not recognizing his

birthday; forcing him to witness third-party harassment; retaliation; and sending vulgar

emails. Most of the documents attached as exhibits are the same as for the SAC.

       Werner’s demurrer to the TAC is not part of the record on appeal. Kumho

demurred to the TAC based on the failure to state a claim and because the seven causes

of action are uncertain, ambiguous, and unintelligible. The court sustained defendants’

demurrers to the TAC without leave to amend.




                                             5
                                               III

                                        DISCUSSION

       Gabel’s appellate briefs, filed in propria persona, do not comply with appellate

protocol and California Rules of Court, rule 8.204(a)(1)(C).) “When an appellant’s brief

makes no reference to the pages of the record where a point can be found, an appellant

court need not search through the record in an effort to discover the point purportedly

made.” (In re S.C. (2006) 138 Cal.App.4th 396, 406.) It is appellant’s duty “to refer the

reviewing court to the portion of the record which supports appellant’s contentions on

appeal. . . . If no citation ‘is furnished on a particular point, the court may treat it as

waived.’” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Duarte v.

Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) In spite of these defects, in

the interests of justice, we will address Gabel’s contentions based on our independent

review of the record.

A. Standard of Review

       The trial court’s judgment or order “is presumed correct and prejudicial error must

be affirmatively shown.” (Foust v. San Jose Construction Co., Inc. (2011) 198

Cal.App.4th 181, 187.) In reviewing a trial court’s order sustaining a demurrer without

leave to amend, we independently review the complaint to determine whether it alleges

facts sufficient to state a cause of action under any legal theory and whether the trial court

abused its discretion in denying leave to amend. (Code Civ. Proc., § 472c, subd. (a);

Connerly v. State of California (2014) 229 Cal.App.4th 457, 460; Cantu v. Resolution

                                                6
Trust Corp. (1992) 4 Cal.App.4th 857, 879.) We treat the demurrer as admitting all

material facts—including matters that may be judicially noticed—but not contentions,

deductions or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1,

6.)

B. Failure to State A Claim

       Werner argues that Gabel waived some of his claims by not addressing them on

appeal. (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 775.) We disagree. A fair

and liberal reading of his briefs discloses an effort to discuss all his causes of action.

Nevertheless, Gabel does not offer salient argument or authority to support his contention

that the trial court erred in sustaining defendants’ demurrer without leave to amend.

1. Labor Code Violation and Fraud

       Gabel’s first cause of action, for violations of Labor Code sections 970, 971, and

972, alleges that Werner made false representations to induce him to move from Oregon

to Rancho Cucamonga under a relocation agreement. Gabel maintains the employment

conditions at Kumho were not as represented and he was wrongfully terminated by

Werner on January 30, 2009. Gabel cites Labor Code section 970, which prevents

employers from inducing employees to move to, from, or within California by

misrepresenting the nature, length, or physical conditions of employment. (Seubert v.

McKesson Corp. (1990) 223 Cal.App.3d 1514, disapproved on other grounds in Dore v.

Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389-391.)




                                               7
       This cause of action does not apply to Kumho, who was not Gabel’s employer and

made no representations to him. Werner does not address Labor Code section 970.

However, claims under Labor Code sections 970, 971, and 972 have been held subject to

a one-year statute of limitations under Code of Civil Procedure section 340, subdivision

(a), for actions upon a statute for a “penalty or forfeiture.” (Aguilera v. Pirelli Armstrong

Tire Corp. (9th Cir. 2000) 223 F.3d 1010, 1018, citing Munoz v. Kaiser Steel Corp.

(1984) 156 Cal.App.3d 965, 980.) Gabel’s employment was terminated in January 2009.

His complaint, filed more than two years later in October 2011, was untimely as to this

cause of action.

       The third cause of action for fraud is based on the same allegations that Werner

made misrepresentations to induce Gabel to relocate from Oregon to Rancho Cucamonga.

Gabel alleges the fraud occurred on April 11, 2008. The applicable statute of limitations

is three years. (Code Civ. Proc., § 338, subd. (d); William L. Lyon & Associates, Inc. v.

Superior Court (2012) 204 Cal.App.4th 1294, 1312.) Gabel has not pleaded or proposed

any facts that would justify the application of the delayed discovery rule. (Jolly v. Eli

Lilly & Co. (1988) 44 Cal.3d 1103, 1110; Lee v. Escrow Consultants, Inc. (1989) 210

Cal.App.3d 915, 920.) Therefore, the complaint filed in October 2011, more than three

years later than April 2008 was untimely as to the cause of action for fraud.

       Even if not time-barred, the fraud claim has not been alleged with the required

specificity and fails for that reason. (Engalla v. Permanente Medical Group, Inc. (1997)

15 Cal.4th 951, 974; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519;

                                              8
Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782-783;

Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The fact that

Werner induced Gabel to accept a promotion and to relocate to California is insufficient

to support a fraud claim against Werner and wholly inapplicable to Kumho.

2. Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing

       In the second cause of action, Gabel attempts to state a claim as the third-party

beneficiary of a contract between Werner and Kumho. Gabel cannot prevail on such a

theory. For a contract to be enforceable by a third party, a contract with another must be

made expressly for the benefit of the third person. (Civ. Code, § 1559.) Even if a third

person may receive an incidental benefit from a contract, he cannot enforce the contract.

(Sheppard v. Banner Food Products (1947) 78 Cal.App.2d 808, 812; Mottashed v.

Central & Pac. Impr.Corp. (1935) 8 Cal.App.2d 256, 260.) Gabel was an employee of

Werner and was neither a party to the contract between Werner and Kumho nor an

express beneficiary of their contract. His second cause of action fails.

       Alternatively, the fourth cause of action for breach of the covenant of good faith

and fair dealing, arising from the underlying breach of contract claim, is untenable

because Gabel failed to establish he was a party to or a beneficiary of any material

contract with defendants. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d

654, 658; InfiNet Marketing Services, Inc. v. American Motorist Ins. Co. (2007) 150

Cal.App.4th 168, 180.) Gabel does not allege the existence of any contract except for the

“relocation agreement,” in which Werner agreed to provide financial assistance for

                                             9
Gabel’s move and Gabel agreed to reimburse Werner if he voluntarily resigned within

two years. Nowhere does Gabel allege that Werner violated this agreement or that

Werner demanded reimbursement from Gabel. Gabel did not allege any bad faith by

Werner on connection with the relocation agreement.

3. Tort Claims and Promissory Estoppel

       Gabel also cannot assert separate tort claims against both defendants (although

Kumho was not his employer) in the fourth and fifth cases of action for breach of the

implied covenant of good faith and fair dealing and negligence. The tort claims are

subject to a two-year statute of limitations for the “wrongful act or neglect of another.”

(Code Civ. Proc., § 335.1.) Any act or neglect by defendants occurred before January 30,

2009. His complaint filed in October 2011 is more than two years later than January

2009. No amendment can cure this defect.

       Furthermore, the California Workers’ Compensation Act (Lab. Code, § 3600 et

seq.) provides the exclusive remedy for any injury sustained in the course of

employment. (Lab. Code, §§ 3601, 3602; Charles J. Vacanti, M.D., Inc. v. State Comp.

Ins. Fund (2001) 24 Cal.4th 800, 811.) Injuries resulting from termination of

employment are subject to the exclusive remedy rule because, “both the act of

termination and the acts leading up to termination necessarily arise out of and occur

during and in the course of the employment.” (Shoemaker v. Myers (1990) 52 Cal.3d 1,

20.) Workers’ compensation is also generally the employee’s only remedy for injuries

resulting from an employer’s conduct that is a normal part of the employment

                                             10
relationship, “notwithstanding that the injury resulted from the intentional conduct of the

employer, and even though the employer’s conduct might be characterized as egregious.”

(Id. at p. 15.)

       The exclusive remedy doctrine also bars Gabel’s sixth cause of action for

promissory estoppel. Additionally, he failed to plead sufficient facts to establish such a

claim. Gabel asserts, “Wrongfully terminated employees may assert contractual rights

based on estoppel principles.” Promissory estoppel is not a cause of action per se,

although it can be pleaded as a substitute for consideration to establish a contract.

Promissory estoppel is “‘a doctrine which employs equitable principles to satisfy the

requirement that consideration must be given in exchange for the promise sought to be

enforced.’” (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation

Authority (2000) 23 Cal.4th 305, 310.) The elements of promissory estoppel are (1) a

clear promise, (2) reliance, (3) substantial detriment, and (4) damages “‘measured by the

extent of the obligation assumed and not performed.’” (Toscano v. Greene Music (2004)

124 Cal.App.4th 685, 692.) Here the sixth cause of action seems to be based on Werner’s

alleged inducements involving relocation. Kumho was not involved because it was not

Gabel’s employer. Otherwise, no specific facts support this claim against defendants.

4. Employment Discrimination

       The seventh cause of action is a mélange of allegations about employment

discrimination and wrongful termination directed jointly at both Kumho and Werner.

Gabel alleges that Kumho employees called him a monkey, asked about his marital status

                                             11
and whether he was gay, excluded him from birthday celebrations, subjected him to

displays of third-party harassment, stole a model truck off his desk, sent him vulgar

emails, and engaged in other kinds of harassing behavior. He also alleges that Werner

did not respond to his complaints and terminated him in violation of public policy. On

appeal, Werner treats the seventh cause of action as waived. Kumho contends the cause

of action does not apply to it because it was not Gabel’s employer.

       A special demurrer to a complaint may be brought on the ground the pleading is

uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f); Beresford

Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Indeed, a

pleading must state the essential facts upon which a determination of the controversy

depends. Allegations of material facts that are left to surmise are subject to demurrer for

uncertainty. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531,

537.) A demurrer for uncertainty may be sustained when a defendant cannot reasonably

determine what it is required to respond to; for example, when a plaintiff joins multiple

causes of action as one, fails to properly identify each cause of action, or fails to state

against which party each cause of action is asserted if there are multiple defendants.

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

       Applying these principles, we conclude the seventh cause of action is uncertain,

ambiguous, and unintelligible. Although Werner was Gabel’s employer and Kumho was

not, Gabel seems to allege joint liability by them for Kumho’s employees’ conduct

toward him and Werner’s termination of his employment. Based on the present state of

                                              12
the pleadings, however, defendants cannot determine what are the essential, material facts

upon which they may be held liable to Gabel or what are the nature of the legal claims

against them. On appeal, Gabel cites no intelligible, pertinent legal authority to support

the seventh cause of action. The trial court properly sustained the demurrer to this cause

of action without leave to amend.

C. Amendment

       Gabel has the burden to show a complaint may be amended. (Hendy v. Losse

(1991) 54 Cal.3d 723, 742.) It is an abuse of discretion to deny leave to amend only if an

amendment is potentially effective. (CAMSI IV v. Hunter Technology Corp. (1991) 230

Cal.App.3d 1525, 1542.) If the plaintiff cannot show an abuse of discretion, the trial

court’s order sustaining the demurrer without leave to amend must be affirmed.

(Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1498.)

       Whether below or on appeal, Gabel has not shown any reasonable possibility of

curing defects by amendment after filing four versions of the complaint. In Chicago Title

Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 312-314, a private

antitrust action, defendants brought demurrers to each successive complaint over the

course of two years. The matter was dismissed on demurrer to the fourth amended

complaint after plaintiffs failed to allege an unlawful business practice and injury. In

Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, plaintiff was

denied leave to amend a fourth time. The trial court here could not have reasonably

concluded that there was any possibility of curing the defects of the complaint if Gabel

                                             13
was granted another opportunity. Under these circumstances, after four attempts to state

a claim, it was well within the court’s discretion to sustain the demurrer without leave to

amend. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1371.)

                                              IV

                                       DISPOSITION

       Gabel has not shown error, even under an independent standard of review. His

claims fail as a matter of law for multiple reasons. We affirm the judgment.

       In the interests of justice, the parties shall bear their own costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  CODRINGTON
                                                                                          J.

We concur:


McKINSTER
                Acting P. J.


MILLER
                           J.




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