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28 ARENT FOX LLP ATTORNKYS A T L A W

Los ANGBI HS

Harry 1 Johnson, III (SBN 200257) Stanley G. Stringfellow II (SBN 259047) ARENT FOX LLP 555 West Fifth Street, 48th Floor Los Angeles, CA 90013-1065 Telephone: 213.629.7400 Facsimile- 213.629 7401 Email: johnson.harry@arentfox.com

stringfellow.stanley(^arentfox.com

Attorneys for Defendants PANDA EXPRESS, INC., PANDA EXPRESS, LLC, PANDA INN, INC., PANDA RESTAURANT GROUP, INC., HIBACHl-SAN, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

SOKPHY TIN,

Plaintiff,

PANDA EXPRESS, INC., PANDA EXPRESS, LLC, PANDA INN, INC., PANDA RESTAURANT GROUP, INC., HIBACHI-SAN, INC., and DOES 1-100, inclusive,

Defendants.

CASENO. 34-2010-00090959

REPLY IN SUPPORT OF DEMURRER OF DEFENDANTS PANDA EXPRESS, INC., PANDA EXPRESS, LLC, PANDA INN, INC., PANDA RESTAURANT GROUP, INC., AND HIBACHI-SAN, INC. TO PLAINTIFF SOKPHY TIN'S COMPLAINT FOR DAMAGES;

Date. Time: Dept.: Ref No.:

June 29, 2011 2:00 p.m. 53 1530457

Action Filed. Nov. 4, 2010 Trial Date: None yet Law & Mot. Judge: Kevin R. Culhane (Dept)f53y Case Mgmt. Progr.. Robert C. Hight (Dept. 44)

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28 ARENT FOX LLP ArruHNFYs Ar LAW

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REPLY IN SUPPORT OF DEMURRER

I. INTRODUCTION

Plaintiffs Opposition to Defendants' Demurrer attempts to plug the holes she left in her

Complaint. But her attempts are futile because even if her Opposition could be grafted onto the

Complaint, she still fails to plead facts sufficient to sustain any ofthe four causes ofaction she

raises agamst Defendants. The fact remains that the Complaint is replete with legal conclusions

and a noticeable scarcity of relevant allegations of fact. She alleges a few scattered instances of

reputed discriminatory remarks made by Panda employees that fall within the statutory period,

yet her Opposition relies heavily on conduct that is neither actionable nor relevant because of how

remote in time it is Indeed, the Opposition does not explain away fact allegations in the

Complaint that undermine Plaintiffs theory and show the discipline was for valid reasons.

Ultimately, rather than demonstrate the adequacy ofthe pleadings. Plaintiffs Opposition proves

conclusively that her Complaint is deficient as to all causes of action alleged. Therefore, the

Court should sustain this Demurrer and dismiss the entire Complaint without leave to amend

H. ARGUMENT

Plaintiffs Opposition attempts to rebut both Defendants' general demurrer for failure to

plead facts sufficient to sustain a cause of action under California Code of Civil Procedure

Section 430.10(e) and their special demurrer for uncertainty under Section 430.10(f) ofthe same.

Although none of Plaintiff s arguments against either grounds for demurrer demonstrate the

adequacy of her pleading. Defendants need only prevail on one of their specified grotmds for the

Court to sustain their demurrer. (See Steam v. County of San Bernardino (2009) 170 Cal. App

4th 434, 440 ["If a complaint is insufficient on any ground specified in a demurrer, the order

sustaining the demurrer must be upheld"].) Because Defendants have presented compelling

reasons to support both their general and special demurrers, the Court should sustain their

Demurrer and dismiss the Complaint.

A. Plaintiffs Opposition Fails To Establish That She Adequately Pled Anv Of

Her Four Causes Of Action.

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1. Plaintiff Sets Forth A Series Of Events In Her "Statement Of Facts"

And Then Draws Legal Conclusions In Her Causes Of Action.

In her Complaint, Plaintiffs tack seems to be: set forth a hodge-podge of facts in the

statement of facts section, and then draw conclusions about how Defendants' violated the law in

each of her causes ofaction. In her First Cause of Action for Pregnancy/Sex Discrimination, she

alleges only two facts' she is a female and she became pregnant while employed with

Defendants. (See Complaint, ^ 66.) The remaining "allegations" are nothing but unsubstantiated

conclusions. {See, generally, id. at ̂ T[ 65-69.) In her Second Cause of Action for Retaliation,

Plaintiff alleges only the broad, conclusory claim that she "exercised her right to request time off

from work due to her pregnancy condition pursuant to the Califomia Family Rights Act" (Id at

f 71.) Again, the remaining allegations are purely unsubstantiated conclusions. (See, generally,

id at ̂ 70-75.)' Finally, in both the Third Cause of Action for Failure to Prevent Discrimination

and Retaliation and Fourth Cause of Action for Adverse Employment Action in Violation of

Public Policy, she does not allege anything remotely similar to facts. (See, generally, id. at f̂ 76-

79 and 80-83, respectively.) Plaintiffs Opposition fails to remedy these glaring defects.

2. Even With Her Opposition, Plaintiff Still Has Not Adequately Pled

Any Of Her Causes Of Action.

In her Opposition, Plaintiff attempts to do what she failed to do in her Complaint, which is

to insert the alleged "facts" into the appropriate cause ofaction. This effort, however, fails for

several important reasons.

a. First, Any Reference To The 2005 Allegations Must Be

Disregarded.

First and foremost, half of Plaintiff s arguments rely on the "2005 Allegations" (as

ARENT FOX LLP ATTORNtYS AT LAW

LO*; A N C E L S S

' Furthermore, there are only two instances pled where Plaintiff requested time off of work for reasons related to her pregnancy for her fifth pregnancy in March 2005 and for her sixth pregnancy in January 2008, both of which, according to her Complaint, were granted Because Plaintiff specifically limited the "allegations" in this cause of action to her requesting time off for pregnancy-related reasons, it is disingenuous for Plaintiffto argue in her Opposition that Defendants "ignored the fact that less than three months before being termmated, Plaintiff notified Defendants of her subsequent pregnancy, and shortly afiter received unwarranted write-ups " (Opp 8) Notwithstanding the fact that Plaintiffs designation ofthe write-ups as "unwarranted" is both extraneous to and unsupported by the Complaint, there is also no allegation in the Complamt that she requested time off for her seventh pregnancy (See Complaint, fl 49-58 )

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designated in Defendants' moving papers; see Demurrer 2.) For instance, in support of her First

Cause of Action, she references comments that general manager Yan Hua Liu allegedly made to

and about her regarding her pregnancy. (See Opp. 7.) She also argues how, "prior to informing

Defendants of her pregnancy, [she] had an excellent performance record," but then was

"disciplined, threatened with termination, and demoted with a pay decrease for alleged

performance problems." (Id) She raises these "incidents" in support of her causes ofaction, too.

(See, generally, id at 8, 10.) She argues that, "[g]iven the history of Defendants' disparate

treatment of Plaintiff in coimection with her previous pregnancies, a fact-finder has more than

enough information to infer that the real reason for terminating Plaintiff was because she had

exercised her right to request time off from work due to her pregnancy condition pursuant to the

Califomia Family Rights Act"^ (Opp. 8-9.)

But even accepting these arguments as true, the corresponding allegations are too remote

in time to be actionable—every one ofthe incidents alleged therein took place beyond the

statutory limit of one year under the FEHA (see Gov't C. § 12960(d)) and three years under Code

of Civil Procedure Section 338. (SeeDuggalv G E. Communications Services, Inc (2000)81

Cal. App. 4th 81, 86 ["When a ground for objection to a complaint, such as the statute of

limitations, appears on its face or from matters of which the court may or must take judicial

notice, a demurrer on that ground is proper," citing Cal. Civ. Proc. C. § 430.30(a)].) And besides

the fact that they were perpetrated by different actors, there is no allegation of discriminatory

conduct alleged between March 2005 and August 2008—a period of nearly three-and-a-half

years. (See Complaint, W 27-46.) Such a gap in time removes any possible argument for

considering these allegations imder the doctrine of "continuing violations." (See, generally,

Yanowitz v L'Oreal USA, Inc (2005) 36 Cal. 4th 1028, 1059 [in order to demonstrate continuing

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^ But the "history" of Defendants' treatment of Plaintiff in connection with her previous pregnancies is, at best, inconclusive Even accepting Plaintiffs argument that she was disciplined, demoted, and subject to a pay decrease shortly after informing Panda of her pregnancy and need for leave in 2005, it is undisputed that, three years later, Plaintiff was m the same position and rank that she was in 2005, requested and took pregnancy leave, extended her pregnancy leave, and retumed to the same position and pay at the conclusion of her leave that she had when she left. Based on these facts, the only inference that can be drawn is that Panda's previous treatment of her was not due to her pregnancy and request for leave, but to her performance

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violadons, plaintiff must demonstrate that the conduct "occurred with reasonable frequency"].)^

Because discrete acts of alleged unlawful conduct by different actors more than three years

before the next act of alleged unlawful conduct cannot be credibly said to have occurred "with

reasonable frequency," they are not relevant, they are not actionable, and they do not matter

Therefore, they must be disregarded in determining the adequacy of Plaintiff s Complamt.

b. Second, The Remaining 2008-2009 Allegations Do Not Establish

Any Discriminatory Or Retaliatory Animus.

The only relevant facts Plaintiff sets forth in her Statement of Facts, and that Plaintiff

identifies in her Opposition, are those starting from paragraph 44 onwards (designated as the

"2008-2009 Allegations" in Defendants' moving papers; see Demurrer 3.). From these facts.

Plaintiff identifies three basic sets of wrongful conduct in her Opposition:

(1) Area Coach of Operations Wang's Comment.

On June 15, 2008, Plaintiff returned to work after maternity leave and resumed her

position as "assistant front manager." (See Compl. *̂| 44-45.) Within two months, she

approached her Area Coach of Operations Kai-Yi Wang about becoming the general manager of

her restaurant, but Mr. Wang told her in response that "she should just worry about taking care of

her children since she had so many." (Id at ^46.) Approximately Avo wo«̂ /25 later. Plaintiff had

to leave work thirty minutes early to care for her daughter, who suffered a burn. She advised

another employee, who was a "lead counter help," of her need to leave Later that same day, Mr.

Wang reprimanded her for not informing him of her emergency.'* (See id at \ 47.)

Approximately/owr months after this reprimand, Mr. Wang informed Plaintiff of her suspension.̂

(See id at f 57.)

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Los A N C F I ES

•* Whether the Court sustains this Demurrer, but grants leave to amend, and Plaintiff leaves the 2005 Allegations in her amended pleadings, or the Court overrules this Demurrer, Defendants anticipate filing a motion to strike the 2005 Allegations from the complaint Therefore, in order to economize judicial resources, Defendants urge the Court to order Plaintiffto either remove the 2005 Allegations from her amended pleading or strike them from the Complaint.

"* Mr. Wang's alleged conduct—his August 2008 comment and his October 2008 write-up—fall outside ofthe FEHA's one-year statute of lunitations, and it is highly questionable whether they could even be included under a theory of continuing violations

' Presumably, since, according to the Complaint, Mr Wang asked Plaintiff for her store keys at the time she was advised of her suspension (See Compl, 1] 57.)

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28 ARENT FOX LLP ATTORNEYS AT LAW

Lcs A-JGELES

(2) General Manager lyamu's Conduct

At the beginning of November 2008, Plaintiff was transferred—still as Assistant

Manager—to a restaurant in West Sacramento, where Tony lyamu was the General Manager.

(Compl. Yi 48, 50.) In that same month. Plaintiff became pregnant with her seventh child and

informed Mr. lyamu about it, to which Mr. lyamu responded by asking her "why she had so many

kids" and whether "she received welfare benefits " (Id at f 50.) That same month, Mr lyamu

issued Plaintiff a "no call, no show'" written waming for missing her shift when she allegedly was

"called into [sic] help out" at another restaurant by general manager Justin Gen Plaintiff was

"confused and explained to lyamu that Gen was supposed to call and let him know that [her]

assistance was needed " (Id at | 51 ) Nevertheless, Mr. lyamu reminded her that she was

scheduled to work at his restaurant that day. (Id ) Mr. lyamu was transferred away from her

restaurant in January 2009. (See id. at 54.)

(3) Requesting Permission For A Day Off.

On about January 22, 2009, Plaintiff requested permission from Mr. Wang to take Friday,

January 30, 2009 off (Compl., f 53 ) That same month, Mr. lyamu was replaced by new general

manager, "Nicolas" (last name imknown to Plaintiff), who approved her request for the day off.

(See id at | 54-55.) She took the day off, and retumed to work the next day. (See id. at ̂ 56.)

On Febmary 2, 2009, however. Plaintiff was "suspended for three days from PANDA EXPRESS

due to absences," and then terminated from her employment on February 6, 2009 "for attendance

issues." (Id at lit 57-58.)

(See Opposition, pp. 6-8, 10, for PlaintifPs reliance on the three above-enumerated allegations)

Each ofthe three aforementioned allegations of discrimination and retaliation are

insufficient to sustain any of Plaintiff s four causes ofaction. With respect to the first, Mr. Wang

allegedly made one comment. Two months later, he disciplined Plaintiff for failing to notify him

of her need to leave her shift early. She implies that this discipline was improper or unwarranted

by alleging that she had notified a "lead counter help" of her early departure; however. Plaintiff

was the Assistant Manager (see Compl., ^ 45), and lead counter help was her subordinate. She

does not report to the lead counter help, nor does she allege otherwise. It is clear from the

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Complaint, therefore, that she was disciplined for failing to follow proper protocol and report to

her supervisor, and not for any animus directed at her for having been pregnant. More

importantly, Plaintiff does not allege any differently.

With respect to Mr. lyamu, there is likewise only one occasion on which Plaintiff alleges

he made comments directed towards her pregnancy and children. Moreover, it is clear from the

Complaint that he issued her a written warning for impermissibly failing to show up for her

scheduled shift. She attempts to imply an improper animus for the write-up by alleging that she

was called into help by another general manager, but Mr. Gen was not in charge of her, and she

fails to allege that she had any obligation to respond to his call for assistance, particularly when

doing so meant missing her ovra shift.̂ Panda does not have a policy whereby an employee may

miss his or her scheduled shift to assist at another location (absent permission from his or her—

not another—general manager), nor does Plaintiff so allege. It is clear from the Complaint,

therefore, that she was disciplined for failing to notify her general manager that she was going to

miss her shift, and not because she was pregnant.

Finally, Plaintiff argues in her Opposition that she was terminated for absences "even

though she received prior permission for her absences."' (Opp. 7; see also 8, 10.) But this

argument is both immaterial and misleading. It is immaterial because there is nothing in the

Complaint to suggest that approved absences played any part in Panda's decision to terminate her

(see Compl., ^^ 57-58), and misleading to the extent Plaintiff suggests it did. Plaintiff does not

allege in her Complaint that she was terminated because ofthe approved day off she took on

January 30, 2009, and the mere fact that her termination was preceded by this approved day off

does not mean that Plaintiff was terminated for taking it. According to her Complaint, in fact,

Plaintiff was previously disciplined for at least two unapproved absences from work (leaving

work early to attend to her daughter and missing work to assist at another restaurant). Moreover,

ARENT Fox LLP ATTORNEYS A T LAW

LQS A N C E I HS

' According to the Complamt, Plaintiff was "called into [sic] help out" by Mr Gen at his restaurant (Compl, H 51), suggesting a volunteer request, but then argues that she was "following the instruction ofa superior," suggesting that Mr Gen ordered her as her "superior" to miss work at her own restaurant This exaggerates the nature ofthe request, because, again, there is no allegation that Mr. Gen was her supenor

' Defendants note that Plaintiff misrepresents her Complaint with this argument The Complaint contains only one allegation of Plaintiff requesting and receiving prior permission to miss work (See Compl, fl 53, 55.)

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there is no allegation that her request for the day off was at all pregnancy-related (See Compl,

HI 53, 55-56.) Consequently, her arguments in the Opposition that she was terminated for being

absent on the days she was approved to miss carry no weight whatsoever

In Califomia, employees are not protected from being disciplined for their misconduct

simply because they engage in protected conduct. (See, e g, Nash-DeCamp Co. v Agricultural

Labor Relations Bd (1983) 146 Cal. App. 3d 92,103 [participation in "protected activities does

not insulate the employee from discharge for misconduct or provide immunity from routine

employment decisions"]; NLRB v Tamper (4th Cir. 1975) 522 F 2d 781, 788 [an employee's

participation in protected activities "cannot shield him from punishment for violation of

reasonable rules goveming his work"].) Plaintiff may have been a woman and become pregnant

on several occasions, but she was still obligated to abide by Panda's policies and procedures.

Moreover, the two isolated comments by two different supervisors about her pregnancy and

children are not sufficient to sustain any cause of action based on discrimination or retaliation

"Such 'stray remarks' do not establish discrimination." (Gibbs v Consolidated Services (2003)

111 Cal. App 4th 794, 801 (finding that supervisor's comment about plamtiff bemg "too old to

be a driver" does not establish discriminatory purpose in refusing to give him position as a

driver); see also Harris v. City of Fresno (E.D. Cal. 2009) 625 F. Supp. 2d 983, 1004 ["stray

remark" with "no apparent or evident connection to the adverse employment decision" does not

give rise to a discriminatory animus]; Merrick v Farmers Ins Group (9th Cir. 1990) 892 F. 2d

1434, 1438 ["'stray' remarks are insufficient to establish discrimination"].) Neither can either or

both ofthe comments sustain a cause ofaction for wrongful termination, particularly when one of

the comments was allegedly made six months before her termination, and the other was made by

a former supervisor who was not her supervisor at the time she was terminated, nor is there any

allegation that he was involved in the decision to fire her.*

B. Plaintiff Fails To Rebut Defendants' Specific Demurrer For Uncertainty.

In the Demurrer, Defendants argue that treating all five Defendants as one "big.

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' In fact, according to the Complaint, he was transferred out of her restaurant the month before she was terminated (See Compl, H 54)

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amorphous entity" rendered it "impossible for each ofthe defendants to properly and adequately

respond to the allegations set forth in the Complaint." (Demurrer 12.) In response to this special

demurrer for uncertainty. Plaintiff points to paragraph 9 of her Complaint, which she argues puts

"each Defendant on notice that they each must respond to all allegations in the complaint, based

on agency theory." (Opp. 11 [emphasis original].) But this argument in unavailing because

paragraph 9 fails to make any allegation of fact. The existence of agency and employment

relationships are conclusions of law, not allegations of fact. (See, e g., Johnson v. Banducci

(1963) 212 Cal. App. 2d 254, 262 ["The court must determine when, under evidentiary facts

alleged, the employer-employee relationship exists in the legal sense of that term"]; Doe I v Wal-

Mart Stores, Inc (9th Cir. 2009) 572 F. 3d 677, 682-683 [in reviewing lower court's granting of

motion to dismiss, held that "Plaintiffs' general statement that Wal-Mart exercised control over

their day-to-day employment is a conclusion, not a factual allegation stated with any

specificity"].^) Consequently, Plaintiffs "allegation" that Defendants were agents and employees

ofeach other is an unsupported legal conclusion that does not put Defendants on notice of

anything. Just because Plaintiff claimed that each ofthe Defendants "was an agent and/or

employee ofeach and every other Defendant" does not mean that Plaintiff has adequately alleged

facts to support such a conclusion, nor does it mean that Defendants are any more on notice of

whether and to what in the Complaint they must respond.

Furthermore, Plaintiff alleges in paragraph 1 that she was "a recmit, employee, or

wrongfully terminated employee" ofeach ofthe five Defendants. The uncertainty, therefore, lies

in the disjunctive "or." She does not identify for which ofthe Defendants she was a recruit, for

which she was an employee, or for which she was a "wrongfiilly terminated employee " This

identification is essential because simply being a recmit of any ofthe Defendants would not

create any liability for her allegations of unlawful conduct because all of her allegations consist of

conduct that occurred after her employment began.

Moreover, it is unclear from the Complaint if each ofthe Defendants operated different

fast food restaurants in Sacramento, or ifthey co-owned the same fast food restaurants in

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' Defendants note that Plaintiff does not even allege this much in paragraph 9 ofthe Complaint - 8 -

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Sacramento, and while her Complaint identifies locations in or near Sacramento at which she

worked, they do not identify to which ofthe corporate Defendants they belonged. And while frue

that exactly which Defendants Plaintiff worked for and when is "presumptively within the

knowledge ofthe demurring defendant," this scattergun approach to pleading impermissibly

imposes Plaintiffs burden of pleading onto Defendant. It is an abuse of pleading to name persons

or entities as defendants without alleging a proper foundation for such. Plaintiff does so, and then

counters with her argument that she "has not yet had an opportunity to conduct discovery in order

to establish otherwise" (Opp 11.), apparently viewing discovery as a device for weeding out

defendants she had no business suing in the first place. But in Califomia, the California Code of

Civil Procedure permits plaintiffs to sue "Doe" defendants so that they can wait to name a

defendant until obtaining actual knowledge ofthe defendant's liability. (See Cal Civ Proc C §

474, Fuller v Tucker (2000) 84 Cal. App. 4th 1163, 1170 [the purpose of C.C.P. § 474 is to

permit a plaintiffto delay naming a defendant while he or she "lacks knowledge of that person's

connection \yith the case or with plaintiffs injuries"].) In her Opposition, Plaintiff claims that she

named each Defendant in "good faith [...] based upon information provided in her personnel

records." (Opp. 11.) If she, in fact, has such information, she must plead it. Otherwise, there is

nothing to stop her from naming any number of unrelated defendants in her lawsuit

Also, Defendants are not permitted at this stage to present the information "presumptively

within their knowledge" to show that the Complaint should be dismissed as it pertains to them.

When Plaintiff has not alleged facts sufficient to establish a foundation for including a particular

Defendant in this lawsuit, it is patentiy unfair to impose the costs and burdens of defending

against Plaintiffs claims on that Defendant. If Plaintiff does not know which entities are her

employers, she should only sue those for which she has a good faith reason for believing

employed her, and then add any additional entities as defendants that she later on, through

discovery, leams employed her.

C. The Defects In The Complaint Cannot Be Cured By Amendment.

Plaintiffs Opposition demonstrates rather plainly that, contrary to her assertions, the

defects in her Complaint cannot be cured by cimending it. She alleges only three "facts" that fall

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within the statutory limits that can possibly be construed as discriminatory or retaliatory, and as

set forth above, none ofthe three hold the water Plaintiff wants them to hold. Mr. Wang's

solitary comment came two months before he issued her a legitimate reprimand for not advising

him of her need to leave work early, and six months before he (presumably) participated in the

decision to terminate her. Mr. lyamu's made his comment in the same month that he issued her a

written waming, but this does not change the fact that she "no call, no showed" for work, as the

Complaint concedes. And finally, she was terminated for absences shortly after taking an

allegedly approved day off, but she does not allege that the "absences" for which she was

terminated included the approved day off Consequently, this Court should sustain the Demurrer

and deny leave to amend.

Defendants renew their request, however, that ifthe Court grants leave to amend, that it

order Plaintiffto plead with particularity the alleged wrongful actions taken by each Defendant

during the statutory time period and to dismiss her claims against any and all Defendants for

which she cannot plead any specific wrongful conduct during the statutory period. Of course,

such a dismissal would be without prejudice, leavmg Plaintiff free to later name any dismissed

Defendants should she discover evidence demonstrating their liability towards her for the causes

of action alleged.

HI. CONCLUSION

For the foregoing reasons and those set forth in the Demurrer to the Complaint, this Court

should sustain Defendants' Demurrer as to all causes of action, without leave to amend.

Dated: June • ^ 2011 ARENTX)}X JfcjLP

shnsqj Attorneys for Defiendants PANDA EXPRESXINC, PANDA

iSS, LLCTPANDA INN, INC., JDA RESTAURANT GROUP, INC.,

IIBACHI-SAN, INC.

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Los ANGKLES

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SOKPHY TIN V PANDA EXPRESS INC, ETAL Sacramento Superior Court Case No.: 34-2010-00090959

PROOF OF SERVICE

I am a citizen ofthe United States. My business address is Arent Fox LLP, 555 West Fifth Street, 48th Floor, Los Angeles, Califomia 90013-1065. I am employed in the County of Los Angeles where this service occurs. I am over the age of 18 years, and not a party to the within cause. On the date set forth below, according to ordinary business practice, 1 served the foregoing document(s) described as:

REPLY IN SUPPORT OF DEMURRER OF DEFENDANTS PANDA EXPRESS, INC., PANDA EXPRESS, LLC, PANDA INN, INC., PANDA RESTAURANT GROUP, INC., AND HIBACHI-SAN, INC. TO PLAINTIFF SOKPHY TIN'S COMPLAINT FOR DAMAGES

I—I (BY FAX) I transmitted via facsimile, from facsimile number 213.629.7401, the '—' document(s) to the person(s) on the attached service list at the fax number(s) set

forth therein, on this date before 5.00 p.m. A statement that this transmission was reported as complete and properly issued by the sending fax machine without error IS attached to this Proof of Service.

I—I (BY E-MAIL) On this date, I personally transmitted the foregoing document(s) via '—' electronic mail to the e-mail address(es) ofthe person(s) on the attached service list.

D (BY MAIL) I am readily familiar with my employer's business practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business On this date, I placed the document(s) in envelopes addressed to the person(s) on the attached service list and sealed and placed the envelopes for collection and mailing following ordinary business practices.

l—j (BY PERSONAL SERVICE) On this date, I delivered by hand envelope(s) '—' containing the document(s) to the persons(s) on the attached service list.

[3^ (BY OVERNIGHT DELIVERY) On this date, I placed the documents in '—' envelope(s) addressed to the person(s) on the attached service list, and caused those

envelopes to be delivered to an overnight delivery carrier, with delivery fees provided for, for next-business-day delivery to whom it is to be served

I—I (State) I declare under penalty of perjury under the laws ofthe State of California '—' that the foregoing is tme and correct.

Executed on June 22, 2011 at Los Angeles, California.

/ Valerie Snencer Valerie Spencer

PROOF OF SERVICE

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28 ARENT FOX LLP ATTOKNFYS A T L A W

Los A N G K I fci

SOKPHY TIN V PANDA EXPRESS INC, ETAL Sacramento Superior Court Case No.: 34-2010-00090959

SERVICE LIST

Lawrance A. Bohm, Esq. Bianca N. Smith, Esq. Bohm Law Group 4600 Northgate Blvd. Suite 210 Sacramento, CA 95834 PHONE: 916-927-5574 FAX: 916-927-2046

PROOF OF SERVICE