Case Name: Tomasa Spalding v. Joe Frangieh, et al.
Case No.: 17CV317746

I. Background

This case brought by Tomasa Spalding (“Plaintiff”) against Joe Frangieh (“Frangieh”), and State Farm Mutual Automobile Insurance Company (“State Farm”) (collectively “Defendants”) arises from the termination of Plaintiff’s employment.

According to the allegations of the First Amended Complaint (“FAC”), Frangieh interviewed and hired Plaintiff to sell insurance. He also provided some training, but he was not the only source of guidance on how Plaintiff was to do her job. State Farm also had influence over Plaintiff’s work. Plaintiff attended on-line and in person State Farm trainings, and was required to obey mandatory State Farm policies. Plaintiff was told that the computer and phone systems were from State Farm, and it had to approve office security. Plaintiff and Defendants entered into an agreement appointing Plaintiff as a licensed representative of State Farm, a status that State Farm could terminate.

During Plaintiff’s employment, Frangieh allegedly made several racist comments about Mexicans. For instance, he stated “Mexican people are like ‘whoo-hoo, I have an appointment, I’ll just get there whenever I want to’” while rolling his eyes. (FAC, ¶ 9.) Plaintiff is Latina, and was offended by this comment and others like it. He also treated Plaintiff worse than he treated a younger, non-Latina employee by favoring the other employee with greater training opportunities and overtime.

Plaintiff eventually emailed State Farm twice to complain about Frangieh’s behavior. Reg Dahlen, an employee of State Farm, responded to Plaintiff’s emails. Plaintiff described the facts to Mr. Dahlen. Mr. Dahlen stated he would address her complaint, and that she could contact him if needed. He indicated he would like to speak to Frangieh. Plaintiff expressed concern that if Mr. Dahlen contacted Frangieh, he would fire her the next day. Mr. Dahlen told her that he had no choice, and expressed doubt that Frangieh would retaliate against her. Mr. Dahlen contacted Frangieh and Frangieh fired Plaintiff soon thereafter.

The FAC alleges causes of action for (1) Discrimination in Violation of Government Code section 12940, subdivision (a); (2) Harassment in Violation of Government Code section 12940, subdivisions (a) and (j); (3) Retaliation in Violation of Government Code section 12940, subdivision (h); (4) Failure to Take Reasonable Steps to Prevent Harassment / Discrimination / Retaliation in Violation of Government Code section 12940, subdivision (k); (5) Wrongful Termination in Violation of Public Policy; and (6) Negligence.

Currently before the Court is the demurrer to the fourth and sixth cause of action by State Farm. These are the only causes of action asserted against State Farm.

State Farm filed a Request for Judicial Notice (“RJN”) of five documents. State Farm requests judicial notice of: (1) Select Licensed Staff Agreement (“Agreement”) between Defendants and Plaintiff; (2) Notice of Case Closure on Administrative Dismissal regarding Yoni Garcia; (3) Dismissal and Notice of Rights regarding David McBryde; (4) Dismissal and Notice of Rights regarding Sabrina Pritchett-Evans; and (5) Dismissal and Notice of Rights regarding Felecia L. Palmer. Plaintiff filed an opposition to the request as to all documents but the Agreement.

With reference to the Agreement, State Farm claims judicial notice of the Agreement is proper based upon Evidence Code section 452 subdivision (h), which permits notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Courts have taken judicial notice of agreements between the parties pursuant to that provision where there is no dispute as to their contents. (See Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1026; see also Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 666, fn. 2.) Here, Plaintiff does not dispute the contents of the Agreement, but relies upon and cites to it in her opposition. Accordingly, judicial notice of the Agreement is proper.

The remainder of the items in the request are administrative documents finding various people were not employees of State Farm. As to the remainder of the documents, they are administrative decisions by the California Department of Fair Employment and Housing (“CDFEH”) and Equal Employment Opportunity Commission (“EEOC”). Generally, they are decisions to dismiss cases because the complainant lacked an employer-employee relationship with State Farm. State Farm asserts that these documents are proper subjects of judicial notice because they are official acts of an executive department of the state of California or of the United States. Evidence Code § 452, subdivision (c) permits judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Evid. Code, § 452., subd. (c).) State Farm cites to these documents in support of the point that its agents are not employees.

Plaintiff argues in opposition that judicial notice of pleadings is inappropriate based upon Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347. As State Farm points out in reply, the decisions are not pleadings, and the cited case states factual findings, conclusions of law, and judgments are permissible subjects of judicial notice. (Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347 360, fn 7.)

However, the factual statements by claimants attached to the decisions are akin to pleadings. These statements attached to the formal decisions are in essence just statements submitted by the claimant. Thus, Plaintiff’s argument regarding pleadings is well taken as to factual statements by claimants attached to the decisions. Judicial notice of a document does not mean factual statements in the document are accepted as true. (StarMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.) The Court could take judicial notice of the decisions, but would not assume the truth of these factual assertions if it did so.

Plaintiff also argues in the opposition that to take judicial notice of the factual finding made by the administrative agencies is inappropriate because it is equivalent to taking judicial notice that the findings must have been correct. (See Sosinsky v. Grant (1992) 7 Cal.App4th 1548.) State Farm replies that it does not offer the exhibits for their factual truth, i.e. that any of the people discussed therein were actually not employees, “but rather for the fact that EEOC and/or DFEH investigators determined that claimants… were not State Farm employees.” (Reply to RJN, p. 2:12-13.)

Absent accepting the factual findings as correct, and without the factual context supplied by the various complainants’ statements attached to the decisions, the relevance of the decisions cannot be determined and they would not be useful to the court in this context. The Court would have no way to know whether any of the people which the EEOC or CDFEH determined were not employees of State Farm were similar to any person involved in this case, or if the decision was correct. The court may decline to take judicial notice of irrelevant documents. (See Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 341; AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313., fn. 2.)

The Court could take judicial notice of the decisions standing alone and without factual context, as Plaintiff apparently argues. However, the decisions could not be relevant without some facts establishing the people in these decisions were in some way similar to a person in this case. Thus, these documents are not helpful in deciding the instant motion absent supporting facts.

Accordingly, judicial notice is GRANTED as to exhibit 1 (the Agreement), and DENIED as to the remaining documents.

II. Merits of the Demurrer

State Farm demurs to the fourth and sixth causes of action on the ground of a failure to state sufficient facts under Code of Civil Procedure, section 430.10, subdivision (e).

A. Fourth Cause of Action for Failure to Take Reasonable Steps of Prevent Harassment/Discrimination/Retaliation

Plaintiff alleges that State Farm failed to take reasonable steps to prevent harassment, discrimination, or retaliation, in violation of Government Code, section 12940, subdivision (k). State Farm argues Plaintiff has not alleged facts showing that it was Plaintiff’s employer, which is required for a claim under Government Code section 12940, subdivision (k).

For background, Government Code section 12940, subdivision (k) is part of the Fair Employment and Housing Act (“FEHA”), and makes it an unlawful employment practice “[f]or an employer… to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) An employment relationship is required to allege a claim for failure to take preventative steps. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 499 (“Patterson”); Kelly v. Methodist Hospital of Southern Cal. (2000) 22 Cal.4th 1108, 1116.) FEHA defines an employer as “any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities…” (Gov. Code, § 12926, subd. (d).)

Whether an employment relationship exists between two parties is determined by “a totality of the circumstances test, that reflect[s] upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff’s performance of employment duties.” (Vernon v. State (2004) 116 Cal.App.4th 114, 124 (“Vernon”).) Courts look to a variety of factors, including “payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant’s discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant’s regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff’s employment.” (Id at 125.) Among these factors, the most important is the extent of the defendant’s right to control the means and manner of the worker’s performance. (Id. at p. 126.) “That control must be significant in order to hold the alleged employer responsible, especially when the conduct underlying the claim was committed indirectly, by an immediate employer other than the defendant.” (McCoy v. Pacific Maritime Association (2013) 216 Cal.App.4th 283, 302 (“McCoy”).)

Plaintiff alleges that State Farm was either a joint employer with Frangieh, or liable under an ostensible agency theory.

1. Joint Employer

State Farm first asserts that under the totality of the circumstances test the various factors considered together or separately do not show that it was Plaintiff’s joint employer. State Farm argues that case law emphasizes one factor over the rest, whether a defendant controls the plaintiff’s actions on a day to day basis. The Court agrees that control is the most important factor in determining if an employer-employee relationship exists. (See Vernon, supra, 116 Cal.App.4th at 124; McCoy, supra, 216 Cal.App.4th at 302.))

The FAC includes allegations showing Frangieh exercised tremendous control ofverPlaintiff. Plaintiff alleges Frangieh interviewed and hired Plaintiff (FAC, ¶ 7), controlled when Plaintiff arrived at work (FAC, ¶ 14), controlled whether Plaintiff received overtime (FAC, ¶ 10), gave Plaintiff assignments (FAC, ¶ 15), and eventually terminated Plaintiff (FAC, ¶ 16). The FAC does not include facts showing that State Farm had anything like the “right to control the means and manner of the workers’ performance…” exercised by Frangieh. (See Vernon, supra, 116 Cal.App.4th at 124.)

Plaintiff argues in the opposition that State Farm controlled Plaintiff indirectly. Plaintiff presents several arguments that State Farm controlled Plaintiff based upon the Agreement. First, State Farm could terminate Plaintiff’s appointment without cause under the Agreement. Plaintiff alleges that the appointment was required for her position, and thus “terminating her license would result in the termination of her employment…” (FAC, ¶ 17.) As State Farm points out, appointment and employment are not the same. Plaintiff admits as much in the opposition, where she argues that the power to terminate her appointment “is akin to the power to terminate her employment.” (Opp., p. 5:6.)

Next, Plaintiff argues the Agreement limited Plaintiff’s employment opportunities which evidences an employment relationship and control. Plaintiff cites several cases for the point that anyone who limits the access of any individual to employment could be considered an employer. (See Spirit v. Teachers Ins. & Annuity Ass’n (2d Cir. 1982) 691 F.2d 1054, 1063.) The rule Plaintiff draws from these cases is contrary to more recent and controlling law that does not mention limitations on outside employment as a factor in determining whether an employment relationship exists. (See Vernon, supra, 116 Cal.App.4th at 124 [not mentioning limitation on outside work in list of factors to be considered].)

Plaintiff asserts that the Agreement gave State Farm the power to disclose the fact she is appointed to third parties is a type of control. It is unclear how the power to disclose a person is appointed is evidence of control over them. Plaintiff does not cite any authority for this point, and the Court is not aware of any such authority.

Plaintiff’s arguments based upon the Agreement are undercut by the fact the Agreement unambiguously states Plaintiff “is not to be considered an employee of State Farm…” (RJN, Exhibit 1.) Plaintiff addresses this issue by arguing that the characterization of the parties in the Agreement does not control their relationship based upon Patterson. (See Patterson, supra, 116 Cal.App.4th 446, 502.) Patterson does indeed limit the parties’ characterization of their relationship to one factor among many that must be considered. (Ibid. [“Of course, the parties’ characterization of their relationship in the franchise contract is not dispositive. [Citation.] We must also consider those evidentiary facts set forth in the summary judgment materials…”].) Thus, the Agreement’s express denial is not controlling, and the Court now turns to Plaintiff’s arguments regarding the surrounding factual allegations.

Plaintiff argues State Farm trained her and provided policies she had to follow, which shows control over her. This argument is unpersuasive because even a comprehensive operating system similar to what a franchisor provides to a franchisee, is not sufficient to show “control” over the manner work indicative of an employer. (See Patterson, supra, 60 Cal.4th at 497 [“The ‘means and manner’ test generally used by the Courts of Appeal cannot stand for the proposition that a comprehensive operating system alone constitutes the ‘control’ needed to support vicarious liability claims like those raised here. As noted, a franchise contract consists of standards, procedures, and requirements that regulate each store for the benefit of both parties”].) While trainings and policies may influence how work is done, the “standard [for control] requires ‘a comprehensive and immediate level of ‘day-to-day’ authority’ over matters such as hiring, firing, direction, supervision, and discipline of the employee.” (Id. at p. 499.) Based upon the FAC, Frangieh and not State Farm exercised these day to day powers.

Plaintiff also alleges that State Farm provided IT support, and some compliance services through Mr. Dahlen. Whatever weight these two allegations have is countered by the other allegations showing Frangieh and not State Farm controlled Plaintiff’s work. Frangieh hired Plaintiff, gave Plaintiff assignments, decided when Plaintiff would arrive at work, gave or denied her overtime, and fired her. (See Vernon, supra, 116 Cal.App.4th at 125 [day-to-day control is the most important factor in determining employer].)

Accordingly, Plaintiff has not sufficiently alleged that State Farm was her employer under a joint employee argument.

2. Ostensible Agency Theory

Plaintiff alleges that State Farm’s actions reasonably lead her to believe State Farm was her employer, and thus it is liable under an ostensible agency theory. The elements of ostensible agency are: (1) a representation or omission by the principal leading plaintiff reasonably to believe the third person was the principal’s agent/employee; (2) the plaintiff’s reasonable belief the third person was authorized to act on the principal’s behalf and was not negligent in relying upon the supposed agent’s apparent authority and; (3) the plaintiff’s change of position or injury resulting from such reliance. (Yanchor v. Kagan, 22 Cal. App. 3d 544, 549.) Representations or conduct by the principal, rather than the purported agent, are necessary to plead ostensible agency. (See J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 404.)

State Farm asserts Plaintiff’s belief was not reasonable based upon Agreement and the written statement therein that “Employee is not to be considered an employee of State Farm for any purpose or at any time.” (RJN, Exhibit 1.) Plaintiff counters this point by citing to Salazar v. McDonald’s Corp. (N.D. Cal. Aug 16, 2016) No. 14-cv-02096-RS, 2016 U.S. Dist. LEXIS 108764 (“Salazar”).) In Salazar, persons who worked at a McDonald’s franchise sued McDonald’s under several theories including ostensible agency for misconduct by a supervisor. The court denied a motion for summary judgment on the ostensible agency claim, despite the defendant’s argument that the plaintiffs’ applications had stated clearly that they were applying to work at a franchise, not for McDonald’s directly. (Id. at p. 24-25.) Salazar is not controlling, but is persuasive due to the similarity of its facts. Some California case law supports Salazar in that it holds one written statement that a plaintiff should have seen does not necessarily defeat the reasonableness of a plaintiff’s belief in ostensible agency. (See Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741 [ostensible agency claim survived summary judgment where sophisticated plaintiff and judicial officer failed to notice small print disclosing Coldwell broker was a franchisee, not a representative of Coldwell Bank].) As in Salazar, Plaintiff here signed a single agreement stating she was not working for the overarching company, but an independent contractor or franchisee. Accordingly, the disclaimer in the Agreement does not defeat the reasonableness of Plaintiff’s belief.

State Farm also argues that the alleged requirement Plaintiff attend its trainings and adhere to its policies is not sufficient to render Plaintiff’s belief she was a State Farm employee reasonable. The Court disagrees. The alleged “mandatory trainings (both on-line and in person) from State Farm” in conjunction with “policies from State Farm that she was told she had to follow.” (FAC, ¶ 18) Receiving training and policies that must be complied with could lead a person to reasonably believe they were employed by the organization providing the training and policy guidance. The FAC, liberally construed, states sufficient facts that Plaintiff could reasonably believe State Farm was her joint-employer or that Frangieh was State Farm’s agent.

State Farm disagrees, asserting “that nothing in the alleged conduct of State Farm… would cause a reasonable person to believe an ostensible agency relationship existed.” (Dem., p. 18: 7-8.) State Farm cites Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448 (“Mejia”) as the basis for this point. In Mejia the Court considered whether a patient could reasonably believe a doctor was an employee of the hospital where the patient was treated. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458-1500.) The case does deal with ostensible agency, but is distinguishable on its facts.

State Farm also attempts to counter Plaintiff’s ostensible agency theory by asserting that State Farm agents, such as Frangieh, are not agents for purposes of employment. According to State Farm, Frangieh must be approved to act as its agent for purpose of employment for an ostensible agency relationship. This argument is fundamentally flawed because ostensible agency is based upon the plaintiff’s belief in the agent’s authority, not the agent’s actual employment or position in relation to State Farm. (See Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 905 [contrasting actual and ostensible agency].) Moreover, State Farm does not clearly connect this argument to any element of ostensible agency, and cites several non-controlling cases which do not actually discuss ostensible agency. The Court is not persuaded by this argument.

Turning to whether Plaintiff relied to her detriment upon her understanding State Farm was her employer, Plaintiff alleges that she contacted a State Farm compliance officer which resulted in her termination. State Farm asserts that its compliance efforts cannot be used as the basis of an employment relationship. Plaintiff cites federal cases which stand for the proposition that compliance efforts are not indicative of an employer-employee relationship, control, or joint employment. However, these cases are distinguishable in that they do not address ostensible agency, or reliance.

In sum, the demurrer is not sustainable on the basis that Plaintiff has failed to allege sufficient facts to support the fourth cause of action through ostensible agency.

3. Conclusion

Plaintiff has failed to allege facts supporting joint employment but adequately alleged facts supporting a theory of ostensible agency. The demurrer would therefore be sustainable as to the joint employer theory, but not as to ostensible agency. A general demurrer will not lie to part of a cause of action. (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) Thus, the Court cannot sustain the demurrer as to one theory and overrule as to another supporting the same cause of action.

Accordingly, the demurrer to the fourth cause of action for failure to prevent harassment, discrimination, and/or retaliation is OVERRULED.

B. Sixth Cause of Action for Negligence

First, State Farm argues there is no cause of action for negligent failure to prevent harassment, discrimination, or retaliation. Second, State Farm asserts that if such a cause of action exists, it is preempted by a workers compensation exclusivity.

As to the first, State Farm cites several cases for the proposition that “California law does not recognize an independent cause of action for negligence, based on the failure to prevent harassment, discrimination, and/or retaliation.” (Dem, p. 21:5-7.) The Court must assess whether these cases stand for the proposition asserted.

The first case cited by State Farm in support of this argument is Ambrosini v. Universal Cable Holdings, Inc. (N.D. Cal., July 7, 2014, No. CV 14-00896 RS) 2014 WL 3362244. (“Ambrosini”) Ambrosini is distinguishable in that the language State Farm apparently relies upon is limited to a claim against supervisors for negligent failure to prevent discrimination, not the overarching employer; “California does not, however, recognize a common law tort claim for a supervisor’s negligent failure to prevent discrimination.” (Id. at p. 3 [emphasis added].) The Ambrosini court had no reason to consider a claim against the employer as is brought here. The case is therefore distinguishable.

The next case cited for the same proposition is Hine v. Dittrich (1991) 228 Cal.App.3d 59 (“Hine”), which according to State Farm held that “allegations an employer acted unreasonably or ‘should have’ done something different ‘do not establish a tort of negligence independent of the discharge itself.’” (Dem., p. 21:10-12.) In Hine an employer allegedly negligently supervised an employee, eventually resulting in the termination of the plaintiff when he failed to attend a required meeting out of fear of another employee. The court ruled the plaintiff in Hine should have brought a contract claim for wrongful discharge, rather than a tort claim for negligence. (Ibid.)

The Court in Hine did not address whether a cause of action for negligence could be brought based upon failure to prevent discrimination, as here. An opinion is not authority for a proposition not therein considered. (People v. Banks (1993) 6 Cal.4th 926, 945.) Thus, Hine does not support State Farm’s general point that Plaintiff cannot bring a claim for negligence.

State Farm’s then asserts that a “comprehensive statutory remedy” exists and is exclusive, thereby preventing any negligence claim. State Farm does not state in their motion precisely what the statutory remedy is, based upon the citation to Butler v. Sears Roebuck & Co. (N.D. Cal., Oct. 20, 1992, No. C 92-1842 FMS) 1992 WL 364779 (“Butler”), it appears to be FEHA. (See Butler v. Sears Roebuck & Co. (N.D. Cal., Oct. 20, 1992, No. C 92-1842 FMS) 1992 WL 364779, at *3 [referencing the FEHA throughout].) In Butler the court rejected an argument that a negligence cause of action could be brought based upon age discrimination because age discrimination was covered by FEHA. (Id. at p. 3.) The court expressly distinguished between age discrimination and suits based upon other rights which predated the FEHA. (Ibid.) Therefore, Butler is distinguishable from the present case, which does not address age discrimination.

State Farm next cites Rojo v. Klinger (1990) 52 Cal. 3d 65 (“Rojo”), for the proposition that “where a statute creates a right that did not exist at common law and provides a comprehensive and detailed remedial scheme for its enforcement, the statutory remedy is exclusive.” While this statement does appear in the case, and is true as a general proposition, it is inapplicable here. (See id. at 80.) As Plaintiff points out, the Rojo court held that FEHA was not such a compressive remedy and not displace any common law rights. (Ibid.) Thus, Rojo does not support the general proposition the FEHA would prevent a claim for negligence.

In sum, the cases cited by State Farm to show there is no cause of action for negligent failure to prevent harassment, discrimination, or retaliation do not support that position.

As to workers compensation, State Farm asserts that “[t]he California workers’ compensation system preempts civil actions for negligence against employers.” (Dem., p. 21:21-26.) Plaintiff responds that the gravamen of this claim is not a physical injury at work, but negligence resulting in termination, and is thus not displaced by the workers compensation system. To address State Farm’s argument it is necessary to provide some background on worker’s compensation exclusivity. In the first instance, “[i]n determining whether exclusivity bars a cause of action against an employer or insurer, courts initially determine whether the alleged injury falls within the scope of the exclusive remedy provisions.” (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th at 811.) “ ‘First, the fundamental basis of workers’ compensation is an injury sustained in and arising out of the course of employment when the injury is ‘personal physical injury or death.’ [Citation.] … the exclusive remedy provisions apply only in cases of such industrial personal injury or death.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16. “Causes of action seeking to recover ‘[e]conomic or contract damages incurred independent of any’ workplace injury are … exempt from workers’ compensation exclusivity.” (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, supra, 24 Cal.4th at 814.)

There is no personal physical injury or death alleged here. The negligence claim is not based upon any injury arising out of the course of employment. Therefore, workers compensation exclusivity does not apply and cannot prohibit Plaintiff’s negligence claim.

State Farm discusses two exceptions to workers compensation exclusivity to demonstrate that Plaintiff’s negligence claim does not fall within either, and workers compensation exclusivity should apply. It is unnecessary to address these arguments because they could only be valid if Plaintiff’s negligence claim involved an injury, and thereby might fall within workers compensation exclusivity. As this is not the case, these points are irrelevant.

None of State Farm’s arguments in favor of its demurrer to the sixth cause of action are meritorious. Accordingly, the demurrer to the sixth cause of action for negligence is OVERRULED.