Judge: Robert B. Broadbelt, Case: 22STCV09349, Date: 2023-01-27 Tentative Ruling

Case Number: 22STCV09349    Hearing Date: January 27, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Bill Matlock

RESPONDING PARTY:       Plaintiff Lynn Klecka

(1)   Demurrer to First Amended Complaint

(2)   Motion to Strike Portions of First Amended Complaint

MOVING PARTY:                Defendants Farmers Group, Inc., Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company

RESPONDING PARTY:       Plaintiff Lynn Klecka

(3)   Demurrer to First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with each demurrer and the motion to strike.  

EVIDENTIARY OBJECTIONS

The court overrules defendants’ objections to the opposition and exercises its discretion to consider the opposition papers filed by Plaintiff on January 13, 2023.

BACKGROUND

Plaintiff Lynn Klecka (“Plaintiff”) filed this wrongful termination action on March 16, 2022.  Plaintiff filed her operative First Amended Complaint on August 3, 2022 against defendants Farmers Group, Inc., Farmers Insurance Exchange, Fire Insurance Exchange, Truck Insurance Exchange, Mid-Century Insurance Company, Farmers New World Life Insurance Company, and Bill Matlock.

Plaintiff’s First Amended Complaint alleges 11 causes of action for (1) age discrimination; (2) failure to prevent harassment and discrimination; (3) wrongful termination in violation of public policy; (4) negligent hiring, retention, and supervision; (5) intentional infliction of emotional distress; (6) fraud and misrepresentation; (7) gender and age discrimination; (8) failure to pay wages; (9) failure to indemnify; (10) withholding of part of wage; and (11) failure to provide accurate itemized paystubs, keep accurate records, or permit copying and inspection of those records.

Two sets of defendants have filed the pending responsive pleadings: (1) defendant Bill Matlock (“Matlock”) filed a demurrer and motion to strike on November 28, 2022, and (2) defendants Farmers Group, Inc., Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company (“Farmers Defendants”) filed a demurrer on October 21, 2022.   

DEMURRER FILED BY DEFENDANT MATLOCK

Defendant Matlock moves the court for an order sustaining his demurrer to Plaintiff’s fifth, eighth, ninth, tenth, and eleventh causes of action. 

The court sustains Matlock’s demurrer to the fifth cause of action for intentional infliction of emotional distress because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged facts establishing that Matlock’s conduct (including his alleged threats concerning Plaintiff’s job security) was “so extreme as to exceed all bounds of that usually tolerated in a civilized community” and therefore has failed to allege the element of extreme and outrageous conduct.  (Code Civ. Proc., § 430.10, subd. (e); Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [internal quotations omitted]; FAC, ¶¶ 46-48, 188, subds. (d), (e), (f), (g).)

The court sustains Matlock’s demurrer to the eighth, ninth, tenth, and eleventh causes of action because Plaintiff has conceded that they do not state facts sufficient to constitute a cause of action and states that she will “voluntarily dismiss” Matlock as to those causes of action.  (Opp., pp. 2:22-23, 17:5-8.)  

MOTION TO STRIKE FILED BY DEFENDANT MATLOCK

Matlock moves the court for an order striking from the First Amended Complaint (1) the allegations in support of Plaintiff’s request for punitive damages, as set forth in paragraphs 59, 96, 118, 147, 171-172, 183, 202, 244, 258; (2) Plaintiff’s request for civil penalties under the Labor Code and related allegations, as set forth in paragraphs 267, and 271-272; (3) the eleventh cause of action; and (4) the prayer for punitive damages, as set forth in paragraph 315.

The court grants Matlock’s motion to strike Plaintiff’s prayer for punitive damages and related allegations because the court has sustained the fifth cause of action for intentional infliction of emotional distress, which is the only cause of action that Plaintiff asserts against Defendant and therefore the only cause of action that can support a request for punitive damages.  (Code Civ. Proc., § 436, subd. (a).)

The court denies as moot Matlock’s motion to strike the eleventh cause of action because the court has sustained Matlock’s demurrer to that cause of action, and therefore it is removed from the First Amended Complaint as against Matlock.  (Code Civ. Proc., § 436, subd. (a).)

The court denies as moot Matlock’s motion to strike Plaintiff’s request for civil penalties made in connection with the eighth cause of action because the court has sustained Matlock’s demurrer to that cause of action, and therefore it is removed from the First Amended Complaint as against Matlock.  (Code Civ. Proc., § 436, subd. (a).)

DEMURRER FILED BY FARMERS DEFENDANTS

Farmers Defendants move the court for an order sustaining their demurrer to Plaintiff’s fourth, fifth, sixth, seventh, and eleventh causes of action. 

The court sustains Farmer Defendants’ demurrer to the fourth cause of action for negligent hiring, supervision, and retention because it does not state facts sufficient to constitute a cause of action since Plaintiff fails to allege facts establishing (1) as to the negligent hiring and retention claim, that Farmer Defendants “knew or should have known that hiring [Matlock] created a particular risk or hazard and that particular harm materialize[d,]” or, (2) as to the negligent supervision claim, that Farmer Defendants knew that Matlock “was a person who could not be trusted to act properly without being supervised” or that Farmer Defendants “had prior knowledge of [Matlock’s] propensity to do the bad act.”  (Code Civ. Proc., § 430.10, subd. (e); Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395; Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.)  The court notes that Plaintiff, in opposition, argues that she alleges that she complained to Farmers Defendants, but they “continued to employ [Matlock]” despite knowing of the harassment and discrimination of other employees.  (FAC ¶ 193.)  However, this fact is not alleged in support of Plaintiff’s fourth cause of action or incorporated by reference, and instead is alleged in support of the fifth cause of action.

The court sustains Farmer Defendants’ demurrer to the fifth cause of action for intentional infliction of emotional distress because it does not state facts sufficient to constitute a cause of action since Plaintiff does not allege facts establishing that Farmers Defendants’ conduct was “so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Code Civ. Proc., § 430.10, subd. (e); Hughes, supra, 46 Cal.4th at p. 1051 [internal quotations omitted].)

The court overrules Farmers Defendants’ demurrer to the sixth cause of action for fraud and misrepresentation because it states facts sufficient to constitute a cause of action since Plaintiff alleges, with sufficient specificity,  (1) Farmers Defendants made misrepresentations to its agents and Plaintiff that Farmers Defendants would help them establish a business that would be owned by the agents; (2) Farmer Defendants knew the promises made to Plaintiff and other agents were false when they made them; (3) Plaintiff relied on the false allegations; (4) Farmer Defendants intended to defraud Plaintiff as part of an overarching scheme to terminate employees and retain the agency and book of business for free; and (5) Plaintiff has suffered general damages.  (Code Civ. Proc., § 430.10, subd. (e); FAC ¶¶ 232, 235, 237, 246; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [setting forth elements of fraud].) 

The court sustains Farmers Defendants’ demurrer to the seventh cause of action for gender discrimination and age discrimination in violation of Civil Code section 51 et seq. because it does not state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)  First, to the extent Plaintiff bases this cause of action on the allegation that Farmers Defendants discriminated against her during her employment, that allegation would be insufficient because “the Unruh Civil Rights Act has no application to employment discrimination.”  (Rojo v. Kliger (1990) 52 Cal.3d 65, 77; FAC ¶ 249 [Farmers Defendants discriminated against Plaintiff by favoring younger employees and taking away employment opportunities], ¶ 251 [“Defendants discriminated against plaintiff in terms and conditions of her employment based on her gender”].)  Second, to the extent that Plaintiff is attempting to allege this cause of action in the event that Farmer Defendants prove that Plaintiff was not an employee, Plaintiff has failed to allege which “accommodations, advantages, facilities, privileges, or services” that Farmer Defendants have denied Plaintiff.  (Civ. Code, § 51, subd. (b); Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th 729, 746-748.) 

The court sustains Farmers Defendants’ demurrer to the eleventh cause of action for failure to provide an accurate, itemized wage statement and maintain accurate records and/or permit inspection and copying of records because it does not state facts sufficient to constitute a cause of action since (1) it “appear[s] clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred” as to Plaintiff’s request for penalties, and (2) Plaintiff has not alleged facts establishing that she is entitled to injunctive relief on behalf of herself as a terminated employee, or on behalf of others.  (Code Civ. Proc., § 430.10, subd. (e); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)  Plaintiff requests penalties pursuant to the Labor Code in connection with this cause of action based on Defendant’s alleged failure to provide accurate wage statements to Plaintiff.  (FAC ¶¶ 297-298, 301-302.)  An action upon a statute for a penalty is governed by a one-year statute of limitations.  (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102; Code Civ. Proc., § 340, subd. (a).)  Because Plaintiff has alleged that she was terminated on March 23, 2020, the court finds that, on the face of the First Amended Complaint, this cause of action is barred by the one-year statute of limitations since any failure to furnish to Plaintiff “semimonthly or at the time of each payment of wages” an accurate itemized statement in writing would have occurred within the weeks following March 23, 2020, such that Plaintiff’s March 16, 2022 complaint is untimely.  (FAC ¶ 51 [Plaintiff was terminated on March 23, 2020].)

ORDER

The court sustains defendant Bill Matlock’s demurrer to plaintiff Lynn Klecka’s fifth, eighth, ninth, tenth, and eleventh causes of action.

The court grants defendant Bill Matlock’s motion to strike plaintiff Lynn Klecka’s prayer for punitive damages and related allegations.

The court sustains defendants Farmers Group, Inc., Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company’s demurrer to plaintiff Lynn Klecka’s fourth, fifth, seventh, and eleventh causes of action.

The court overrules defendants Farmers Group, Inc., Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company’s demurrer to plaintiff Lynn Klecka’s sixth cause of action.

The court grants plaintiff Lynn Klecka 20 days leave to file a Second Amended Complaint to cure the deficiencies set forth above.

The court orders defendant Bill Matlock to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 27, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court