Opinion

Kristina Bain Golem v. Standard Insurance Company

Court
District Court, C.D. California
Filed
Nov 15, 2021
Cited by
0 cases
Authority
More cited than 18.0%

The opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KRISTINA BAIN GOLEM, CV 21-6947 DSF (RAOx)

Plaintiff,

Order GRANTING Motion to

v. Remand (Dkt. 14)

STANDARD INSURANCE

COMPANY, et al.,

Defendant.

Plaintiff Kristina Bain Golem moves to remand this action to Los

Angeles Superior Court. Dkt. 14. Defendant Standard Insurance

Company opposes. Dkt. 15. The Court deems this matter appropriate

for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule

7-15. For the reasons stated below, Golem’s motion to remand is

GRANTED.1

I. BACKGROUND

Golem is an individual residing in the State of California. Dkt. 1,

Ex. 1 (Compl.) ¶ 1. Standard is an Oregon corporation with its

principal place of business in Portland, Oregon. Id. ¶ 2. The City of

Los Angeles is located in the County of Los Angeles, California. Id. ¶ 3.

Standard issued a group accidental death and dismemberment

policy (the Policy) to the City, covering City employees who elected and

paid for the coverage. Id. ¶ 5. Employees who were covered by the

Policy were provided with a certificate listing the terms and conditions

1 The unopposed requests for judicial notice are granted.

of the Policy. Id. ¶ 6. Golem’s late husband, Adam Golem (the

Decedent), was covered by the Policy, which provided him with

$500,000 in accidental death and dismemberment insurance. Id. ¶¶ 5,

7-8. The Policy issued to the Decedent provided in part that Standard

would pay benefits if he or his dependent “have an accident” resulting

in a loss while insured under the Policy. Id. ¶ 8. The Policy defined

loss as “loss of life, hand, foot, sight, speech, hearing in both ears,

thumb and index finger of the same hand, coma, and Uniplegia,

Quadriplegia, Hemiplegia, or Paraplegia” that is (1) “caused solely and

directly by an accident”; (2) “[o]ccurs independently of all other causes”;

and (3) [o]ccurs within 365 days after the accident.” Id. The Policy

excluded coverage if the accident or loss was caused by “[s]ickness or

pregnancy existing at the time of the accident or exposure” or “[h]eart

attack or stroke.” Id.

The Decedent died on November 25, 2020 while snorkeling in

Hawaii. Id. ¶ 12. The autopsy report concluded that he died “as a

result of an accident, drowning, and that a cardiac arrhythmia ‘may

have’ contributed to the accidental death.” Id. Golem made a claim

under the Policy, but on May 11, 2021, Standard issued a letter to

Golem denying coverage because “Mr. Golem’s medical conditions

contributed to his death.” Id. ¶¶ 13-14.

Golem brought this action in Los Angeles Superior Court on July

27, 2021, bringing claims against Standard for breach of contract and

breach of the implied covenant of good faith and fair dealing and

against the City for negligence and breach of fiduciary duty. Id. ¶¶ 18-

52. On August 27, 2021, Standard removed this action from Los

Angeles Superior Court to this Court on the basis of diversity

jurisdiction. Dkt. 1 ¶ 5. Standard removed this action without joinder

from the City on the grounds that the City had not yet been served and

is a sham defendant. Id. ¶¶ 3-4. On October 27, 2021, Golem served

the City. Dkt. 19.

II. LEGAL STANDARD

A. Removal

“Federal courts are courts of limited jurisdiction” and “possess

only that power authorized by [the] Constitution and statute.”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

Generally, a case may be removed on the basis of diversity of

citizenship if the amount in controversy exceeds $75,000 and the

plaintiff and defendant are citizens of different states. 28 U.S.C.

§ 1332(a). But cases may not be removed on the basis of diversity of

citizenship “if any of the parties in interest properly joined and served

as defendants is a citizen of the State in which such action is brought.”

28 U.S.C. § 1441(b)(2).

“The defendant bears the burden of establishing that removal is

proper.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d

1083, 1087 (9th Cir. 2009). Generally, doubts as to removability are

resolved in favor of remanding the case. See Shamrock Oil & Gas Corp.

v. Sheets, 313 U.S. 100, 108-109 (1941); Gaus v. Miles, Inc., 980 F.2d

564, 566 (9th Cir. 1992).

B. Fraudulent Joinder

A fraudulently joined defendant is ignored when determining if

removal was proper. Morris v. Princess Cruises, Inc., 236 F.3d 1061,

1067 (9th Cir. 2001). A defendant is fraudulently joined if “the plaintiff

fails to state a cause of action against a resident defendant, and the

failure is obvious according to the settled rules of the state.” McCabe v.

Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).

“[T]he test for fraudulent joinder and for failure to state a claim

under Rule 12(b)(6) are not equivalent.” Grancare, LLC v. Thrower,

889 F.3d 543, 549 (9th Cir. 2018). In evaluating a claim of fraudulent

joinder, “a federal court must find that a defendant was properly joined

and remand the case to state court if there is a ‘possibility that a state

court would find that the complaint states a cause of action against any

of the resident defendants.’” Id. (quoting Hunter v. Philip Morris USA,

582 F.3d 1039, 1044 (9th Cir. 2009)). In this inquiry, “the district court

must consider . . . whether a deficiency in the complaint can possibly be

cured by granting the plaintiff leave to amend.” Id. at 550.

III. DISCUSSION

Golem contends removal was improper because there is no

diversity jurisdiction on the grounds that the City was not fraudulently

joined. Mot. at 1. Standard argues the City “is a fraudulently-joined

‘sham’ defendant because Plaintiff has no potential for recovery against

the City in this lawsuit.” Opp’n at 1. Specifically, Standard argues (1)

Golem prematurely filed this action in violation of the Government

Claims Act; (2) the City is immune from liability; (3) Golem cannot

state a claim against the City; and (4) removal was proper because the

City had not yet been served at the time of removal, and Golem still

has not served the City. Id.

“[F]raudulent joinder claims can be resolved by piercing the

pleadings and considering summary judgment-type evidence such as

affidavits and deposition testimony.” Cavallini v. State Farm Mut.

Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995) (internal quotation

marks and citations omitted); see Morris, 236 F.3d at 1068.

A. Liability Under Government Claims Act

Standard argues Golem cannot establish liability against the City

because she failed to comply with the Government Claims Act and

because the City and its employees are immune from liability under the

Act. Opp’n at 5, 7.

1. Premature Filing of Lawsuit

Under the Government Claims Act, a plaintiff must present a

claim for money or damages before pursuing a lawsuit against a local

public entity. Cal. Gov’t. Code §§ 900.4, 905. The claim must be timely

presented and must be made within six months for a tort claim and not

later than one year after the accrual of the cause of action. Id. § 911.2.

The failure to do so bars the plaintiff from bringing suit against the

entity. Id. § 945.4. Additionally, a plaintiff may not bring a lawsuit

against the entity “until a written claim therefor has been presented to

the public entity and has been acted upon by the board, or has been

deemed to have been rejected by the board.” Id.

“Where compliance with the [Government] Claims Act is

required, the plaintiff must allege compliance or circumstances

excusing compliance, or the complaint is subject to general demurrer.”

Mangold v. Cal. Pub. Utilities Comm’n, 67 F.3d 1470, 1477 (9th Cir.

1995) (emphasis added); see also State of Cal. v. Super. Ct., 32 Cal. 4th

1234, 1239 (2004) (“[F]ailure to allege facts demonstrating or excusing

compliance with the claim presentation requirement subjects a claim

against a public entity to a demurrer for failure to state a cause of

action.”).

Standard argues Golem has failed to meet the requirements of

the Act because “Plaintiff failed to file a claim with the City that was

rejected before filing suit against the City.” Mot. at 6. Golem alleges in

the Complaint that she “has timely filed a government tort claim

against the City and is awaiting the expected rejection of that claim.”

Compl. ¶ 52. The City rejected Golem’s claim on August 30, 2021, Dkt.

18 (Ex. 4), after Golem filed suit in Los Angeles Superior Court. These

facts suggest Golem has not complied with the presentation

requirement of the Act. However, there remains a possibility that

Golem could prevail after amending her complaint to allege facts that

constitute compliance with the presentation requirement, such as that

her claim was deemed to have been rejected by the board, or

circumstances excusing compliance. See Cal. Gov’t. Code § 954.2.

The parties dispute the applicability of the ruling of the

California Court of Appeal in Lowry v. Port San Luis Harbor Dist., 56

Cal. App. 5th 211 (2020), review denied (Jan. 27, 2021), in which the

Court of Appeal held that the plaintiffs’ filing of a lawsuit against a

public entity violated the Government Claims Act “because he filed a

complaint before his claim was rejected.” Id. at 219. While the failure

in Lowry was fatal to the plaintiff’s suit, the procedural posture of the

instant action does not mandate the same result. The applicable

standard here is whether there is a possibility Golem can establish

liability – and the Court finds there are facts that if true, Golem could

assert to establish she satisfied the presentation requirement.

2. Vicarious Liability

“A public entity is liable for injury proximately caused by an act

or omission of an employee of the public entity within the scope of his

employment if the act or omission would, apart from this section, have

given rise to a cause of action against that employee or his personal

representative.” Cal. Gov’t Code § 815.2(a). However, “a public entity

is not liable for an injury resulting from an act or omission of an

employee of the public entity where the employee is immune from

liability.” Id. § 815.2(b).

“[A] public employee is not liable for an injury resulting from his

act or omission where the act or omission was the result of the exercise

of the discretion vested in him, whether or not such discretion be

abused.” Cal. Gov’t Code § 820.2. “[I]nstead of interpreting

‘discretionary’ literally, the focus should be on the policy considerations

underlying the governmental entity’s claim of immunity.” Steinle v.

City & Cnty. of San Fran., 919 F.3d 1154, 1160-61 (9th Cir. 2019).

Specifically, discretionary functions are those that involve “basic policy

decisions which have been expressly committed to coordinate branches

of government.” Id. at 1061 (quoting Caldwell v. Montoya, 10 Cal. 4th

972, 981 (1995)). “On the other hand, there is no basis for immunizing

lower level decisions that merely implement a basic policy already

formulated.” Barner v. Leeds, 24 Cal. 4th 676, 685 (2000).

Golem cites the minutes of the July 15, 2021 Joint Labor-

Management Benefits Committee meeting, which she states “identifies

specific committee members responsible for the decision to renew the

accidental death and dismemberment policy issued by Standard to the

City.” Mot. at 17; Dkt. 14-2, Ex. 3 at 3. The Court finds this is

sufficient to establish the decision to renew was a “lower level decision”

that does not immunize the decisionmaker because it was simply a

decision to renew the Policy. See Leeds, 24 Cal. 4th at 685. These facts

suffice to raise the possibility that the state court could find the

employees responsible for the decision to renew the Policy were not

immune from liability, and as a result, that the City is vicariously

liable for their actions. To the extent Golem fails to allege these facts

in her Complaint, including which City employees were responsible for

the decision to renew the Policy, the Court finds this can be cured by

amendment.

Standard also appears to argue Golem has not identified a

statute under which the City is liable in tort. Opp’n at 7. However, in

the Complaint, Golem alleges she has filed a “government tort claim

against the City,” Compl. ¶¶ 44, 52, and the Court finds this is

allegation is sufficient to establish that Golem has alleged a specific

statute, the Government Claims Act, under which the City is liable.

B. Possibility of Prevailing in State Court

If Standard can establish there is no possibility a state court

could find Golem can prevail on her negligence and breach of fiduciary

duty claims against the City, then remand is not appropriate.

To establish negligence under California law, a plaintiff must

prove (1) a legal duty to use due care, (2) a breach of such legal duty,

and (3) the breach is the proximate or legal cause of the resulting

injury. Beacon Residential Cmty. Assn. v. Skidmore, Owings & Merrill

LLP, 59 Cal. 4th 568, 573 (2014). To establish a claim for breach of

fiduciary duty, Golem must prove (1) the existence of a fiduciary duty,

(2) breach of that duty, and (3) damage proximately caused by the

breach. IIG Wireless, Inc. v. Yi, 22 Cal. App. 5th 630, 646 (2018).

Standard argues Golem cannot establish the duty and causation

requirements for either claim. Opp’n at 12, 16-17. The Court

disagrees.

In support of its arguments that the City had a duty of care,

Golem cites Madden v. Kaiser Foundation Hospitals, 17 Cal. 3d 699,

705 (1976) for the proposition that employers owe a duty of care to their

employees in negotiating and procuring group health insurance. Mot.

at 7-8. In Madden, the California Supreme Court held the Board of

Administration of the State Employees Retirement System was given

authority by state statute to “negotiate contracts for group medical

plans for state employees” and that “[i]n negotiating such agreements

and amendments the board acts as the agent or representative of the

employees.” Madden, 17 Cal. 3d at 705. “An agency relationship is a

fiduciary one, obliging the agent to act in the interest of the principal.”

Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 977 (1997), as

modified (July 30, 1997).

Golem alleges the City negotiated the Policy with Standard “for

the benefit of [the City’s] employees.” Compl. ¶ 34. Golem further

alleges the City had a fiduciary duty to its employees because of its (1)

“undertaking to make life insurance available for its employees”; (2)

“negotiation with and selection of Standard as the insurer to provide

various life insurance products”; and (3) “promotion of those products

on behalf of Standard.” Id. ¶ 40. Because Golem has alleged that the

City negotiated with Standard on behalf of its employees and procured

insurance through Standard, she has alleged facts that establish the

possibility a state court could find the City had a fiduciary duty.

Standard also argues Golem cannot establish causation because

she “cannot plead facts to support that the City’s alleged conduct was a

substantial factor in causing Standard’s denial of the benefit claim.”

Opp’n at 15. In particular, Standard argues Golem does not allege the

City was involved with Standard’s decision not to provide benefits, and

Golem would not have been covered under the Policy in any event. Id.

However, Golem makes several allegations that support a finding of

causation. First, Golem alleges “[t]he City violated its duty of

reasonable care by using Standard as the insurer” for the Policy “and

by promoting that coverage to its employees for their peace of mind

despite knowledge that Standard was ignoring California law when

deciding claims to the detriment of the employee’s beneficiaries.”

Compl. ¶ 41. Further, Golem alleges “the City knew or should have

known that Standard would not follow California law’s proximate cause

test for an ‘accident’ when a pre-existing illness may have contributed

to a death” and that despite this knowledge, the City? failed to

negotiate this issue with Standard, terminate the Policy and seek

insurance from a different insurer, or amend the Policy. Id. Golem

argues these acts or omissions by the City resulted in Standard’s denial

of her claim, Golem’s loss of benefits under the Policy, and Golem’s

physical and mental suffering. Id. {| 42-43. The Court finds these

allegations, if true, would establish proximate cause.

Because Standard has not met its burden of establishing there is

no possibility Golem can prevail on her claims against the City, the

Court finds remand is appropriate.

IV. CONCLUSION

Golem’s motion to remand is GRANTED. The case is

REMANDED to the Superior Court of California, County of Los

Angeles.

IT IS SO ORDERED.

Date: November 15, 2021 PSOXMQ- Ap: , 3 Ca-c/ph§

Dale 8. Fischer

United States District Judge

2 In paragraph 41 of the Complaint, Golem alleges “Standard never raised or

sought to negotiate these issues as part of the group policy’s annual renewal.”

While this sentence on its face refers to Standard, the Court concludes this is

a clerical error and that Golem intended to refer to the City.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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