Judge: Shirley K. Watkins, Case: 20STCV02701, Date: 2022-12-08 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 20STCV02701    Hearing Date: December 8, 2022    Dept: T

            [TENTATIVE] ORDER:  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 Motion for Summary Judgment/Motion for Summary Adjudication as to Issue 1 against the first, second, fourth, fifth, and sixth causes of action; as to Issue 2 against the first, second, fourth, fifth, and sixth causes of action; as to Issue 3 thru 7 are DENIED.

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 Motion for Summary Judgment/Motion for Summary Adjudication as to Issue 1 against the third cause of action is MOOT.

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 Motion for Summary Adjudication of Issue 2 solely against the third cause of action and Issue 8 against the eleventh cause of action is GRANTED.

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 Request for Judicial Notice is GRANTED but not as to any hearsay or facts in dispute. 

Introduction

            Defendants Farmers Group, Inc., (FGI) Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company (collectively, Defendants) moved for summary judgment (MSJ) and, alternatively, for summary adjudication (MSA) against Plaintiff Arif Harsolia’s (Plaintiff or Harsolia) Complaint.  Defendants’ Notice to the MSA asserted eight issues against the first through eighth causes of action and the eleventh cause of action (COA). 

            Defendants Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company are collectively referred to as Signatory Defendants.

            Procedure

            Defendants Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company (collectively, Insurers) argued that their withdrawal of the prior MSJ/MSA after issuance of the Court’s tentative ruling does not prohibit the refiling of the instant MSJ/MSA.  To dispute this contention, Plaintiff cites to Groth Bros. Oldsmobile, Inc., v. Gallagher (2002) 97 Cal.App.4th 60 (Groth) and Cowan v. Krayzman (2011) 196 Cal.App.4th 907 (Cowan.)  The Courts in Groth and Cowan provided a road map as to what must be considered when disavowing a voluntarily dismissal or withdrawal of a motion when an adverse tentative ruling was issued prior to the Court’s ruling on dispostive motions.  The Courts reviewed factors regarding attorney impropriety and judicial waste.  Facts showing attorney impropriety included gamesmanship, avoidance of the adverse ruling, counsel’s lack of credibility, and extending litigation/beginning litigation anew.  Judicial waste was seen when the Court’s tentative ruling included a review of the merits of the motion.  In the instant situation, Insurers’ Counsel’s conduct is not shown to be improper because there are no facts to show gamesmanship, avoidance, lack of credibility, or intent to extend litigation.  At most, Counsel could have sought to cure the procedural defects earlier or with the reply, rather than waiting until the tentative ruling was issued.  However, the Court does not find this to be sufficient to show impropriety as seen in Groth or Cowan.  Further, Insurers’ current MSJ/MSA made the exact same arguments as the prior MSJ/MSA.  The only major difference is that FGI is now added as a moving party.  The tentative ruling issued on the Insurers’ prior MSJ/MSA did not rule upon the merits of the motion so there is no showing of judicial waste.  The tentative ruling denied Insurers’ MSJ/MSA on procedural defects – failure to submit declarations with statements of certification and failure to comply with California Rules of Court, Rule 3.1350(b).)  The instant MSJ/MSA corrected these defects.  Without facts to show attorney misconduct or judicial waste, there is insufficient facts to prohibit the review of the instant MSJ/MSA on the merits.  Arguments to prohibit review of the MSJ/MSA are not persuasive.

            Plaintiff’s Opposition in Footnote 1 on page 8 argued that Defendants’ Exhibits E and F violate the Court’s Protective Order because Harsolia Insurance Agency Inc.’s (HIAI) tax returns were attached without redaction.  Plaintiff requested monetary sanctions.  However, Plaintiff’s request is not supported by argument applying facts to law or citation to any legal authority.  Requesting sanctions within a footnote of an opposition to an MSJ/MSA is procedurally improper.  Plaintiff’s request for sanctions is not considered. 

            Discussion 

            Defendants’ MSA Issue 2 solely against the third COA for age discrimination and Issue 8 against the eleventh COA for defamation argued that there are no triable issues of fact showing that age was a substantial motivating factor in Defendants’ decision-making process and that there are no triable issues of fact that defamatory statements were made or that Plaintiff was damaged.  Plaintiff conceded that MSA Issue 2, solely as to the third COA, and Issue 8 as to the eleventh COA do not have a triable issue of fact.  Plaintiff did not oppose the MSA on these two Issues. 

MSA Issue 2 as to the third COA and Issue 8 as to the eleventh COA are GRANTED.

            In MSA Issue 1 against the first (religious discrimination,) second (national origin discrimination,) fourth (harassment,) fifth (failure to prevent discrimination and harassment,) and sixth (wrongful termination) COAs, Defendants argued that there is no triable issue of fact as to the employer/employee relationship.  Determining the existence of an employment relationship “is to consider the totality of the circumstances, reflecting upon the nature of the work relationship between the parties, and placing emphasis on the control exercised by the employer over the employee’s performance of employment duties.  [Bolding Added.]” (Vernon v. State of California (2004) 116 Cal.App.4th 114, 124-125.)  Defendants asserted that commissions were paid to HIAI and not to Plaintiff (Defendants’ Separate Statement of Facts (DSSF)  5, 22, 24 – limiting admissible evidence to the Corporate District Manager Appointment Agreement (CDMAA)).  HIAI then paid Plaintiff’s salary (DSSF 20 – limiting admissible evidence to the Corporate Tax Returns.)  These facts show that Defendants did not provide Plaintiff with remuneration.  However, Plaintiff presented evidence to show that Defendants provided Plaintiff with medical, dental and vision benefits, which shows remuneration.  (DSSF 1 and 20 [limiting review to Exhibit F: HIAI’s tax return Form 1125-E; and Plaintiff’s Additional Separate Statement of Facts (PASSF) 19.)  The conflicting evidence shows a triable issue as to remuneration.  As to Defendants’ lack of control over Plaintiff’s or HIAI’s performance, Defendants cite to the CDMAA’s provision stating that HIAI had sole discretion in performing its obligations.  (DSSF 15 [limiting review to Exhibit A: CDMAA, par. 8.I.])  However, Plaintiff provided the expert testimony of Jay Finkelman to show that Defendants used performance management techniques to control Plaintiff as if he was an employee.  (Plaintiff’s Response to DSSF 15; PASSF 25.)  The conflict over the CDMAA’s provision and Finkelman’s expert testimony provides a triable issue of fact as to Defendants control over Plaintiff’s performance.  The Court finds that there are triable issues of fact as to Plaintiff’s remuneration and whether Defendants controlled Plaintiff’s performance.  Based upon these factors, a triable issue of fact exists as to the existence of an employment relationship with Plaintiff.

MSA Issue 1 against the first, second, fourth , fifth, and sixth COAs is DENIED.

            MSA Issue 1 against the third COA (age discrimination) is MOOT because Plaintiff submitted as to Issue 2 against the third COA, as reviewed above.

            For MSA Issue 2 against the first (religious discrimination,) second (national origin discrimination,) fourth (harassment,) fifth (failure to prevent discrimination and harassment,) and sixth (wrongful termination) COAs and MSA Issue 5 against the sixth COA for wrongful termination, Defendants argued that there was no causal connection between Plaintiff’s termination and the alleged discrimination and that Plaintiff was terminated for a legitimate non-discriminatory reason.  A defendant must make a showing of a legitimate, non-discriminatory reason for the adverse action sufficient to permit a trier of fact to find, more likely than not, that the legitimate reasons were the basis of the decision. (Scotch v. The Art Institute of California (2009) 173 Cal.App.4th 986, 1005.)    Defendants provide that Plaintiff’s termination was based upon an inaccurate report about an agent office location and unsatisfactory business results.  (DSSF 10-14, 37-38.)  Because Defendants presented non-discriminatory reasons for the termination, the burden shifts to Plaintiff to show pretext.  To challenge the motion, a plaintiff must produce admissible evidence showing that the defendant’s stated reasons are untrue or pretextual, or which otherwise would permit the trier of fact to conclude, by a preponderance of the evidence that the defendant’s decision was substantially motivated by discrimination.  (Id., at p. 1006.)  Plaintiff provided evidence showing that Defendants tolerated and condoned discriminatory and harassing conduct by Brianna Bernhardt (PASSF 43-46, 55-68, 70.)  Plaintiff’s facts presented a history of discrimination and harassment and ultimate termination based upon the discrimination and harassment which would present the trier of fact an issue as to whether Defendants’ reasons for termination were pre-textual.  Plaintiff has met his burden of proof to show that Defendants’ reasons for termination were pre-text. 

MSA Issue 2 against the first, second, fourth, fifth, and sixth COAs and MSA Issue 5 against the sixth COA is DENIED.

For MSA Issue 3 against the fourth COA for harassment, Defendants argued that there are no facts to show severe or pervasive harassment.  For MSA Issue 4 against the fifth COA for failure to prevent discrimination and harassment, Defendants asserted that they did not fail to prevent harassment or discrimination because there are no facts showing harassment or discrimination.  Defendants provided that Plaintiff did not suffer severe or pervasive harassment because the alleged conduct was sporadic or trivial and limited to the year prior to the filing of the Department Fair Employment and Housing (DFEH) charge.  (DSSF 34.)  “Harassment, which may be verbal, physical, or visual and communicates an offensive message to the harassed employee cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.  Whether the harassment is sufficiently severe or pervasive to alter the conditions of the victim's  employment and create an abusive environment must be assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.”   (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 877.)  Despite Defendants’ contention otherwise, their own evidence would tend to show from a reasonable person’s perspective that their conduct was severe and pervasive and altered the conditions of employment.  The charges made to the DFEH occurred within the year prior to the filing of the DFEH complaint which shows that Plaintiff allegedly suffered the harassing conduct for a year.  Viewing the evidence strictly against Defendants, there is a reasonable inference that suffering harassment for a year would alter the conditions of employment.  Further, the frequency of the harassing conduct is not presented in Defendants’ fact so Defendants’ contention that the misconduct was trivial is not supported.  Defendants’ arguments as to lack of severity and lack of altering employment conditions is not supported and Defendants did not meet their initial burden.

MSA Issue 3 against the fourth COA and Issue 4 against the fifth COA are DENIED.

As to MSA Issues 6 and 7 (Contract Claims), Defendants argued that there is no triable issue of fact as to breach of the CDMAA and the implied covenant of good faith and fair dealing because there are no facts to support breach.  Defendants argued that they complied with the CDMAA’s provision to provide 30-day notice to terminate the agreement.  (SDSSF 6, 13-14.)  However, the argument contains an underlying issue of material fact as to the existence and/or terms of the agreement.  Defendants’ argument presumed that Plaintiff is a contracting party.  However, Defendants previously argued that the only contracting party is HIAI and not Plaintiff as to the Employment Claims.  (SDSSF 1, 2.) Defendants cannot have it both ways.  The issue of whether Defendants and Plaintiff entered into an express written agreement, the CDMAA, must first be resolved. 

The Court also notes that the seventh and eighth COAs allege that the contract at issue is both express and implied.  (Compl. pars. 92 and 96.)  The Contract Claims are not limited to the CDMAA.  Even if there is no triable issue of fact that Plaintiff is not a party to the CDMAA, the Contract Claims still get passed the MSJ/MSA because Defendants did not address the implied contract at issue.  Because the MSA Issues 6 & 7 have a triable issue of fact and the arguments do not resolve the entirety of the COAs, MSA as to Issues 6 & 7 are DENIED.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.