Arnold v. Mutual of Omaha Ins. 12/30/11 CA1/1

State: California

Court: California Eastern District Court

Docket No: A131440

Case Date: 12/30/2011

Plaintiff: Arnold

Defendant: Mutual of Omaha Ins. 12/30/11 CA1/1

Preview:Filed 12/30/11

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

KIMBLY ARNOLD, Plaintiff and Appellant, v. MUTUAL OF OMAHA INSURANCE COMPANY, Defendant and Respondent. Plaintiff Kimbly Arnold worked as a nonexclusive insurance agent for Mutual of Omaha Insurance Company (Mutual). After plaintiff terminated her contractual relationship with Mutual, she filed suit claiming unpaid employee entitlements under the Labor Code.1 She appeals from a summary judgment in favor of defendant Mutual, in which the trial court determined Ms. Arnolds causes of action depended on her being a former "employee" of Mutual, and the undisputed facts established she was not an employee, but rather an independent contractor. Arnold claims the court erred in concluding the common law test for employment was applicable to determine whether she was an "employee," arguing that a broader statutory definition of "employee" is applicable under Labor Code section 2750. Alternatively, she contends the court incorrectly applied the common law test when it determined there were no triable issues of material fact and concluded she was not an "employee" as a matter of law. As discussed below, we conclude after a de novo review the trial court was correct, and we affirm the summary judgment. (Contra Costa County Super. Ct. No. C10-00230) A131440

1

All further statutory references are to the Labor Code unless otherwise indicated. 1

BACKGROUND On January 25, 2010, Arnold filed a complaint against Mutual on her behalf and on behalf of a class of other persons similarly situated, whom Mutual allegedly employed as a "Licensed Agent" or "Sales Representative." The complaint consisted of three causes of action. The first cause of action alleged Mutual failed to reimburse Arnold and class members fully for "necessary business-related expenses and costs" to which they were entitled under Labor Code sections 2800 and 2802.2 The second cause of action alleged Mutual had willfully failed to pay Arnold and class members for wages earned but unpaid prior to their being discharged from employment or prior to their quitting employment, for which they were entitled to recover under Labor Code sections 201, 202 and 203.3 A third cause of action alleged Mutuals conduct violating Labor Code sections 2800 and 2802 additionally constituted an unlawful business practice in violation of the Unfair Competition Law (UCL) (Bus. & Prof. Code,

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