Judge: Robert B. Broadbelt, Case: 22STCV09349, Date: 2023-08-18 Tentative Ruling

Case Number: 22STCV09349    Hearing Date: August 18, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             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

(1)   Demurrer to Second Amended Complaint

(2)   Motion to Strike Portions of Second Amended Complaint

MOVING PARTY:                 Defendant Bill Matlock         

RESPONDING PARTY:       Plaintiff Lynn Klecka

(3)   Demurrer to Second Amended Complaint

(4)   Motion to Strike Portions of Second Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrers and motions to strike.

BACKGROUND

Plaintiff Lynn Klecka (“Plaintiff”) filed the operative Second Amended Complaint in this action on February 15, 2023, alleging 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 demurrers and motions to strike are now pending before the court.  First, defendants Farmers Group, Inc., Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company (collectively, “Farmers Defendants”) move the court for an order (1) sustaining their demurrer to Plaintiff’s fourth, fifth, seventh, and 11th causes of action, and (2) striking from the Second Amended Complaint the request for punitive damages and related allegations.  Second, defendant Bill Matlock (“Matlock”) moves the court for an order (1) sustaining his demurrer to Plaintiff’s fifth cause of action, and (2) striking from the Second Amended Complaint the prayer for punitive damages and various allegations.

DEMURRER FILED BY FARMERS DEFENDANTS

The court overrules Farmers Defendants’ demurrer to the fourth cause of action for negligent hiring, supervision, and retention because it states facts sufficient to constitute a cause of action since (1) Plaintiff has sufficiently alleged facts to support a claim for negligent retention by alleging that she informed Farmers Defendants of Matlock’s discriminatory practices multiple times, but Farmers Defendants continued to employ Matlock despite their knowledge of this conduct, and (2) the face of the pleadings does not show that this cause of action is barred by the workers’ compensation exclusivity rule since the Second Amended Complaint appears to allege, in the alternative, that Plaintiff might have been an independent contractor and not an employee.  (Code Civ. Proc., § 430.10, subd. (e); SAC ¶¶ 164, 166, 40 [alleging that, if Plaintiff is claimed to be an independent contractor, then the defendants “misrepresented themselves to Plaintiff”]; Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

The court sustains Farmers 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 has not pleaded facts establishing that Farmers Defendants’ conduct was “so extreme as to exceed all bounds of that usually tolerated in a civilized community” and therefore has not alleged 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].)

The court overrules Farmers Defendants’ demurrer to the seventh cause of action for gender and age discrimination in violation of the Unruh Civil Rights Act because it states facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)  The court acknowledges that “violations of [Civil Code] section 51 may not be asserted in the employment context.”  (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1455.)  However, Plaintiff appears to plead this cause of action in the alternative, to the extent that “Defendants claim they are not [P]laintiff’s employers . . . .”  (SAC ¶ 253.)  Plaintiff has alleged that (1) Farmers Defendants “operate a business and make its resources (i.e., Life Insurance Training) available to its agents for use in the sale of insurance policies[,]” thereby alleging that Farmers Defendants were acting as a business establishment, and (2) Farmers Defendants deprived its older, female employees of the privileges or advantages of “participating in the sale of insurance policies” through them.  (SAC ¶¶ 254-255; Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th 728, 746 [finding that the plaintiff had alleged sufficient facts under Unruh Civil Rights Act by alleging that (1) the defendant operated the hospital as a business and made its facilities available to physicians, and (2) the defendant failed to address racist conduct impairing access of the minority physicians to the facility].)  The court finds that these allegations bring this cause of action within the scope of the Unruh Civil Rights Act and are sufficient to support her cause of action thereunder.  

The court sustains Farmers Defendants’ demurrer to the 11th cause of action for failure to provide accurate, itemized wage statements because it does not state facts sufficient to constitute a cause of action since it “appears clearly and affirmatively that, upon the face of the complaint,” this cause of action is barred by the statute of limitations because (1) Plaintiff requests “up to the maximum penalty of $4,000” in connection with this cause of action; (2) the statute of limitations for “[a]n action upon a statute for a penalty” is one year; and (3) Plaintiff alleges that she was terminated on March 23, 2020, such that the Farmers Defendants’ failure to furnish to Plaintiff a wage statement “semimonthly or at the time of each payment of wages” would have occurred within the weeks following March 23, 2020, rendering this action, filed on March 16, 2022, untimely.  (Code Civ. Proc., § 430.10, subd. (e); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881; SAC ¶ 51 [italics added]; Code Civ. Proc., § 340, subd. (a); Lab. Code, § 226.)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  The court finds that Plaintiff has not met her burden to articulate how she can amend her fifth and 11th causes of action to render them sufficient against Farmers Defendants and therefore sustains the demurrer to those causes of action without leave to amend.

MOTION TO STRIKE FILED BY FARMERS DEFENDANTS

Farmers Defendants requests that the court strike from the Second Amended Complaint the following: (1) paragraphs 59, 96, 118, 147, 173, 174, 207, 249, and 267 in their entirety, and (2) the prayer for punitive damages.

The court denies Farmers Defendants’ motion to strike paragraphs 59, 96, 118, 147, 173, 174, 249, and 267, which allege that Farmers Defendants acted willfully, illegally, wantonly, or with malice, oppression, and fraud, which conduct was ratified or condoned by its managing agents or supervisors, and the prayer for punitive damages because Plaintiff has sufficiently pleaded a cause of action for fraud and misrepresentation and therefore has alleged facts establishing that (1) Farmers Defendants are guilty of oppression, fraud, or malice, and (2) advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice on the part of an officer, director, or managing agent of Farmers Defendants.  (Code Civ. Proc., § 436; Civ. Code, § 3294, subds. (a), (b).)

The court denies as moot Farmers Defendants’ motion to strike paragraph 207, because that allegation is made in support of the fifth cause of action for intentional infliction of emotional distress, to which the court has sustained Farmers Defendants’ demurrer, and therefore that cause of action and the allegations in support of it are removed from the Second Amended Complaint.

DEMURRER FILED BY DEFENDANT MATLOCK

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 pleaded facts establishing that Matlock’s conduct was “so extreme as to exceed all bounds of that usually tolerated in a civilized community” and therefore has not alleged the element of extreme and outrageous conduct.  (Code Civ. Proc., § 430.10, subd. (e); Hughes, supra, 46 Cal.4th at pp. 1050-1051 [internal quotations omitted].)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc., supra, 248 Cal.App.4th at p. 290.) To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman, supra, 18 Cal.3d at p. 349.)  The court finds that Plaintiff has not met her burden to articulate how she can amend her fifth cause of action to render it sufficient against Matlock and therefore sustains the demurrer to that cause of action without leave to amend.

MOTION TO STRIKE FILED BY DEFENDANT MATLOCK

Defendant Matlock moves the court for an order striking from the Second Amended Complaint (1) paragraphs 59, 96, 112, 147, 148, 173, 174, 185, 198, 199, 200, 207, 239, 244, 249, 257, 267, 285, 286, and (2) the prayer for punitive damages.  The court denies Matlock’s motion to strike as moot because the court has sustained the demurrer to the sole cause of action alleged against him.

ORDER

The court sustains defendants Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, Farmers New World Life Insurance Company, and Farmers Group, Inc.’s demurrer to plaintiff Lynn Klecka’s fifth cause of action for intentional infliction of emotional distress and 11th cause of action for failure to provide an accurate, itemized wage statement without leave to amend.

The court denies defendants Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, Farmers New World Life Insurance Company, and Farmers Group, Inc.’s motion to strike.

The court orders defendants Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, Farmers New World Life Insurance Company, and Farmers Group, Inc. to file an answer to plaintiff Lynn Klecka’s Second Amended Complaint within 10 days of the date of this order.

The court sustains defendant Bill Matlock’s demurrer to plaintiff Lynn Klecka’s fifth cause of action for intentional infliction of emotional distress without leave to amend.

The court denies as moot defendant Bill Matlock’s motion to strike.

The court orders defendant Bill Matlock to lodge and serve a proposed judgment of dismissal within 10 days of the date of this order.  (Code Civ. Proc., § 581, subd. (f)(1).)

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

IT IS SO ORDERED.

DATED:  August 18, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court