United Farmers Agents Assoc. v. Farmers Group ( 2019 )

Filed 2/22/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
UNITED FARMERS AGENTS B282541
ASSOCIATION, INC.,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC497447)
v.
FARMERS GROUP, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Gregory W. Alarcon, Judge. Affirmed.
Mahoney & Soll, Paul M. Mahoney and Richard A. Soll for
Plaintiff and Appellant.
Hinshaw & Culbertson, Royal F. Oakes, Michael A.S.
Newman; Greines, Martin, Stein & Richland and Robert A. Olson
for Defendants and Respondents Farmers Insurance Exchange,
Truck Insurance Exchange, Fire Insurance Exchange, Mid-
Century Insurance Company, and Farmers New World Life
Insurance Company.
Tharpe & Howell, Christopher S. Maile, Eric B. Kunkel and
William A. Brenner for Defendant and Respondent Farmers
Group, Inc.
_________________________
Plaintiff United Farmers Agents Association, Inc. (UFAA)
is a trade association whose members are insurance agents.
It brought this declaratory relief action against Farmers
Insurance Exchange, Truck Insurance Exchange, Fire Insurance
Exchange, Mid-Century Insurance Company, and Farmers New
World Life Insurance Company (the Companies) as well as
Farmers Group, Inc. (FGI). After a bench trial, the court found
UFAA lacked standing to pursue its claims and failed to
demonstrate it was entitled to declaratory relief. The court
entered judgment in favor of the defendants, and UFAA
appealed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Parties
The Companies are a group of insurers that mutually
contract to sell insurance products through independent-
contractor insurance agents.1 FGI provides the Companies non-
claim related administrative and management services. It is the
attorney-in-fact of Farmers Insurance Exchange, and the parent
company of the attorneys-in-fact of Fire Insurance Exchange and
Truck Insurance Exchange.
UFAA is a nonprofit professional trade association whose
members are insurance agents that sell the Companies’
insurance products. It has approximately 1,900 members, 600 of
whom are located in California.
Agent Appointment Agreements
In order to sell the Companies’ insurance products, an
agent must enter into a form “Agent Appointment Agreement,”
which defines the terms and conditions of the agent’s relationship
1 We use the terms “agent” and “agency” in their colloquial
senses.
2
to the Companies. This case concerns several contractual terms
common to Agent Appointment Agreements signed prior to 2009
(the Agreements), some of which date back to the 1970s.
Under the Agreements, agents must extend the right of
first refusal to the Companies to bind insurance coverage on
behalf of applicants solicited and procured by the agents. In
exchange, the Companies pay commissions and provide agents
advertising assistance, educational and training programs, and
necessary manuals, forms, and policyholder records.
The Agreements require agents “provide the facilities
necessary to furnish insurance services to all policyholders of the
Companies including . . . servicing all policyholders of the
Companies in such a manner as to advance the interests of the
policyholders, the Agent, and the Companies.” The Agreements
further state that an agent “shall, as an independent contractor,
exercise sole right to determine the time, place and manner in
which the objectives of this Agreement are carried out, provided
only that the Agent conform to normal good business practice,
and to all State and Federal laws governing the conduct of the
Companies and their Agents.”
The Agreements allow any party to terminate the contract
by giving three months’ written notice (the no-cause termination
provision). However, if a party breaches the Agreement, the
other party may terminate the Agreement on 30 days’ written
notice. The Companies may also terminate the Agreement
immediately if the agent embezzles funds, switches insurance to
another carrier, abandons the agency, is convicted of a felony, or
makes willful misrepresentations material to the operation of the
agency.
3
If the Agreement is terminated by any party, the agent
generally is entitled to “contract value,” which amounts to
approximately one year’s worth of commissions. In exchange, the
agent must agree not to solicit, accept, or service his or her
customers for a period of one year.
Complaint
On December 17, 2012, UFAA filed a complaint alleging the
Companies and FGI (collectively, Farmers)2 engage in numerous
practices that violate the terms of the Agreements.3 In relief,
UFAA sought four declarations from the court: (1) the
Agreements’ no-cause termination provisions are unconscionable;
(2) the Agreements preclude Farmers’s use of performance
programs and imposition of discipline based on an agent’s failure
to meet performance standards; (3) the Agreements preclude
Farmers from taking adverse action against agents based on the
“location, nature, hours, and types of offices maintained” by the
agents; and (4) the Agreements preclude Farmers from sharing
customer information acquired by agents with competitors, such
as 21st Century Insurance (21st Century).
Trial
The court conducted a bench trial over the course of three
weeks. We summarize the relevant evidence related to each
claim.
2 We refer to the defendants collectively only for the sake of
simplicity. We do not mean to imply they are a single entity or
enterprise.
3 We discuss the nature of the alleged practices in more
detail below.
4
Unconscionability of the No-Cause Termination Provisions
On the unconscionability issue, the court heard testimony
from numerous Farmers representatives4 that it was Farmers’s
policy to read an Agreement to an agent line-by-line before the
agent signed the Agreement. The Agreements were presented on
a take-it-or-leave-it basis, meaning the agents were not allowed
to change any language.
Several agents testified that, before signing the
Agreements, Farmers representatives made additional
representations about the termination provisions. Multiple
agents, for example, said they were told Farmers would only
terminate an agency if the agent engaged in one of the behaviors
expressly prohibited by the Agreements. Another agent said she
was told Farmers would never terminate an Agreement under
the no-cause termination provision because it would constitute
discrimination. Others said they were simply told Farmers does
not enforce the no-cause termination provision.
In response, Farmers presented testimony from
representatives who were present while hundreds of agents
signed their Agreements. The representatives said they had
never witnessed an agent being told an agency would be
terminated only for reasons specifically listed in the Agreements.
Farmers also introduced testimony from three agents who said
they did not discuss the no-cause termination provisions with a
Farmers representative prior to signing their Agreements.
4 For the sake of simplicity, we use the term “Farmers
representative” to refer to individuals affiliated with Farmers
who are not UFAA members.
5
Performance Standards
Numerous agents testified that they had meetings with
Farmers representatives to discuss their poor sales of new
policies and retention of existing policies. After the meetings,
each agent received a letter with the following language: “[Y]ou
have been experiencing a loss of policies in force, insufficient new
business production and/or low policy retention are significant
factors contributing to this loss of policies. . . . [¶] . . . Based on
the overall business results generated by your agency, please be
advised that continuation of your Agent Appointment Agreement
depends on your ability to immediately achieve a significant
improvement in your agency’s business results.” Some of the
agents’ Agreements were eventually terminated.
Farmers did not dispute that it considers an agent’s
performance when deciding whether to terminate an Agreement.
Numerous Farmers representatives testified that, in determining
whether to terminate an Agreement, they consider whether the
agent has achieved an “acceptable business result.” In making
that determination, they look at the agent’s “overall business
results,” including sales of new policies, retention of existing
policies, and profitability. They do not, however, impose any
specific production requirements or sales quotas.
Office Locations
UFAA presented testimony from two agents whose
Agreements were terminated, at least in part, because they were
operating their agencies out of personal residences. A Farmers
district manager also testified that an agent in his district had
been terminated for operating an agency out of her home, and
another had been terminated for using a shipping store as an
office address. He explained that Farmers prefers agents work
6
out of commercial office buildings, in part because it does not
want clients “to be walking through somebody’s living room to
meet with their agent.”
The director of FGI’s home office agencies testified that
Farmers does not have a policy regarding the type of office space
an agent must use, but it does require that the space be
professional and adequate for servicing policyholders. The
director explained that, because an agent must accept premium
payments from any Farmers policyholder, it is important that the
agent’s office is identifiable as a location where Farmers business
is conducted.
The head of commercial sales for FGI testified that
Farmers does not condone agents working out of personal
residences, but it may be acceptable depending on the
circumstances and whether the agent is meeting the needs of
customers. He explained that he has seen situations where
agents have built additions onto their homes to use as private
offices, which allowed the agents to conduct business with their
customers in a professional environment.
Farmers’s expert testified that it is normal for exclusive
agency insurance carriers, like Farmers, to require their agents
conform to good business practices. In the expert’s opinion, it is
not a good business practice, and it is not in the best interests of
the customers or the insurance companies, for a customer to have
to go into a personal residence to do business with the agent.
Sharing of Customer Information
The court heard testimony that 21st Century is owned by
some of the Companies and managed by FGI. Unlike the
Companies, 21st Century is a direct writer of insurance, meaning
it markets directly to consumers for the acquisition of new
7
business. As a result, it is able to offer lower premiums than
insurance companies that sell through agents. Customers can
contact 21st Century and purchase insurance from it over the
phone and the internet.
The court heard testimony that agents are required to
enter their customers’ information into Farmers’s electronic
database. Several Farmers representatives testified that
Farmers does not share such information with 21st Century.
Farmers agent Thana Robinson, however, suspected
Farmers shared her customers’ information with 21st Century.
According to Robinson, she wrote an insurance policy for two
customers, which was in effect for a year. Robinson expected the
customers would renew the policy, but they did not. Instead, the
customers were issued a new policy, which had a “J-code” in
Farmers’s database. Robinson was not certain precisely what the
J-code signified, but she believed it meant the customers obtained
the new policy through 21st Century. Robinson admitted she did
not know if 21st Century obtained the customers’ information
through the database.
Farmers agent Jose Soberanes also suspected Farmers was
sharing customer information with 21st Century. According to
Soberanes, he would frequently provide quotes to prospective
customers and enter their information into Farmers’s database.
A few months later, he would call the customers, only to be told
they had obtained insurance from 21st Century.
Statement of Decision and Judgment
After trial, the court issued a detailed statement of
decision, in which it found in Farmers’s favor on each claim.
At the outset—and as discussed more fully below—the court
determined that UFAA lacked standing to pursue its claims.
8
Although this finding was sufficient to warrant dismissal, the
court nonetheless proceeded to consider the merits of UFAA’s
claims.
The court first determined that UFAA failed to
demonstrate the no-cause termination provision is
unconscionable. The court explained: “UFAA’s members
reported having varying experiences as to what, if anything, was
said about the three-month written termination provision, and
what was said to them about the contract in general. UFAA’s
procedural unconscionability theory rests on the premise all of its
California member agents were orally told the same thing at the
time of signing the [Agreements]. . . . The evidence did not
support this.”
The court next determined that, because UFAA failed to
show the no-cause termination provisions are unconscionable, its
claims related to Farmers’s performance and office standards
necessarily fail as well. The court explained: “If, as the
[Agreement] permits, [Farmers] can terminate the [Agreement]
on three-months’ notice, for no reason at all, the fact that they
have or even let others know, some criteria (e.g., performance
results, business practices) that they consider in the exercise of
their unbridled discretion does not make those factors improper.
To the contrary, it protects [the] use of such factors as wholly
within their unconstrained discretion.”
Even without the no-cause termination provisions, the
court found Farmers’s alleged use of performance and office
standards does not violate the Agreements. It explained that, as
the principal, Farmers has “the right to set expectations about
how much insurance is to be sold for the relationship to continue,
even if the contract allows the agent to determine the time, place
9
and manner in meeting those expectations. [Farmers has] the
right to expect positive business results and to determine what
constitutes adequate results.” The court further explained that
the Agreements require agents to comply with “normal good
business practices, and to all State and Federal laws governing
the conduct of [Farmers] and their Agents.” The court found the
evidence on what constitutes a “normal good business practice”
demonstrated that it encompasses an appropriate business
location and normal business hours. Accordingly, “[a]sking the
agent to maintain an office outside the home and to maintain
normal business hours is not at variance with the agreement.”
With respect to the claim that Farmers improperly shared
customer information with 21st Century, the court found UFAA
presented “no admissible or credible evidence of any instance
where customer information was disseminated to 21st Century”
by Farmers.
Finally, the court declined UFAA’s invitation to find that
FGI and the Companies are a single enterprise.
Judgment, Motion for New Trial, and Appeal
On February 14, 2017, the court entered judgment in favor
of Farmers and against UFAA. UFAA moved for a new trial,
which the court denied on April 19, 2017. UFAA timely appealed.
DISCUSSION
I. UFAA Had Standing to Pursue Some of Its Claims
Before considering the merits of UFAA’s claims, we must
first determine whether it had standing to assert them. We find
UFAA had associational standing to pursue its claims related to
performance and office standards, but did not have standing to
pursue its other claims.
10
A. Standard of Review
Standing is a question of law that we review independently.
(San Luis Rey Racing, Inc. v. California Horse Racing Bd. (2017)
15 Cal.App.5th 67, 73.) “However, where the superior court
makes underlying factual findings relevant to the question of
standing, we defer to the superior court and review the findings
for substantial evidence.” (Ibid.)
B. Associational Standing
“A litigant’s standing to sue is a threshold issue to be
resolved before the matter can be reached on its merits.
[Citation.] Standing goes to the existence of a cause of action
[citation], and the lack of standing may be raised at any time in
the proceedings.” (Apartment Assn. of Los Angeles County, Inc. v.
City of Los Angeles (2006) 136 Cal.App.4th 119, 128, italics
omitted.)
“ ‘[A] plaintiff generally must assert his own legal rights
and interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.’ ” (Independent Roofing
Contractors v. California Apprenticeship Council (2003) 114
Cal.App.4th 1330, 1341.) The doctrine of associational standing
is an exception to this general rule. It provides that, even in the
absence of injury to itself, “an association has standing to bring
suit on behalf of its members when: (a) its members would
otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s
purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in the
lawsuit.” (Hunt v. Washington Apple Advertising Comm’n (1977)
432 U.S. 333, 343 (Hunt).) These are often referred to as the
Hunt requirements.
11
The doctrine of associational standing “was developed in
the federal courts under the ‘case or controversy’ requirement of
article III of the United States Constitution.” (Amalgamated
Transit Union, Local 1756, AFL-CIO v. Superior Court (2009)
46 Cal.4th 993, 1003.) Nonetheless, California courts have
applied the doctrine, including the three Hunt requirements.
(See, e.g., Airline Pilots Assn. Internat. v. United Airlines, Inc.
(2014) 223 Cal.App.4th 706, 726; Apartment Assn. of Los Angeles
County, Inc. v. City of Los Angeles, supra, 136 Cal.App.4th at p.
129; Brotherhood of Teamsters & Auto Truck Drivers v.
Unemployment Ins. Appeals Bd. (1987) 190 Cal.App.3d 1515,
1521; see also Amalgamated Transit Union, Local 1756, AFL-CIO
v. Superior Court, supra, 46 Cal.4th at p. 1003.) We consider
federal case law concerning associational standing persuasive,
although not binding. (See Waste Management of Alameda
County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223,
1234, disapproved on other grounds in Save the Plastic Bag
Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 169–
170.)
C. Analysis
The trial court determined that UFAA lacked standing
because it failed to satisfy the third Hunt requirement, that
“neither the claim asserted nor the relief requested requires the
participation of individual members of the lawsuit.” Although
the court gave multiple reasons for its decision, it seemed to be
motivated in large part by a belief that associational standing is
lacking if the participation of any association member is
necessary to adjudication of the claim. This interpretation of the
third Hunt requirement was too restrictive.
12
The United States Supreme Court has explained that the
third Hunt requirement “is best seen as focusing on . . . matters
of administrative convenience and efficiency.” (Food and
Commercial Workers v. Brown Group, Inc. (1996) 517 U.S. 544,
557.) Although it could be read as foreclosing associational
standing if any individual member participates in the lawsuit,
federal courts have found associational standing despite the need
for participation of some individual members. (See, e.g., Hospital
Council v. City of Pittsburgh (3d Cir. 1991) 949 F.2d 83 (Hospital
Council); Pennsylvania Psychiatric v. Green Spring Health (3d
Cir. 2002) 280 F.3d 278 (Pennsylvania Psychiatric); Retired
Chicago Police Ass’n v. City of Chicago (7th Cir. 1993) 7 F.3d 584(Retired Chicago Police Ass’n); Association of Amer. Physicians v.
Texas Medical (5th Cir. 2010) 627 F.3d 547 (Amer. Physicians).)
In Hospital Council, supra, 949 F.2d 83, for example, the
Third Circuit held that an association of hospitals had standing
to pursue claims that governmental entities were forcing its
members to make payments in lieu of taxes, despite the fact that
adjudication of the claims would likely require trial testimony
from the member hospitals’ officers and employees. The court
explained that the third Hunt requirement is a paraphrase of a
prior statement by the Supreme Court that associational
standing is appropriate unless “the individual participation of
each injured party [is] indispensable to proper resolution of the
cause.” (Warth v. Seldin (1975) 422 U.S. 490, 511, italics added.)
Therefore, the court reasoned, the participation of some members
is not fatal to associational standing, so long as the participation
of each member is not required. (Hospital Council, supra, 949
F.2d at pp. 89–90.) In a subsequent decision, the Third Circuit
further clarified that associational standing may be appropriate
13
where the plaintiff alleges “systemic policy violations that will
make extensive individual participation unnecessary.”
(Pennsylvania Psychiatric, supra, 280 F.3d at p. 286.)
The Seventh Circuit adopted the Third Circuit’s
interpretation of the third Hunt requirement in Retired Chicago
Police Ass’n, supra, 7 F.3d 584. In that case, the court found an
association had standing to pursue its claim that a city breached
certain binding representations made to its members, despite the
fact that it might need to rely on evidentiary submissions of some
of its members to establish the breach. (Id. at p. 603.) The court
explained: “We can discern no indication . . . that the Supreme
Court intended to limit representational standing to cases in
which it would not be necessary to take any evidence from
individual members of an association. Such a stringent
limitation on representational standing cannot be squared with
the Court’s assessment in Brock[5] of the efficiencies for both the
litigant and the judicial system from the use of representational
standing. Rather, the third prong of Hunt is more plausibly read
as dealing with situations in which it is necessary to establish
‘individualized proof,’ [citation], for litigants not before the court
in order to support the cause of action.” (Retired Chicago Police
Ass’n, supra, 7 F.3d at pp. 601–602, fn. omitted.)
The Fifth Circuit considered the issue more recently in
Amer. Physicians, supra, 627 F.3d 547. In that case, an
association of physicians sought declaratory and injunctive relief
related to a medical board’s alleged improper use of anonymous
complaints and retaliatory actions against its member
physicians. After looking to Hospital Council and Retired
Chicago Police Association, the court concluded the association
5 Automobile Workers v. Brock (1986) 477 U.S. 274.
14
had standing. The court explained: “If practiced systemically,
such abuses may have violated or chilled [the association’s]
members’ constitutional rights. Proof of these misdeeds could
establish a pattern with evidence from the Board’s witnesses and
files and from a small but significant sample of physicians.
Because [the association] also seeks only equitable relief from
these alleged violations, both the claims and relief appear to
support judicially efficient management if associational standing
is granted.” (Amer. Physicians, supra, 627 F.3d at p. 553.)
We find the federal courts’ reasoning in these cases
persuasive and adopt their interpretation of the third Hunt
requirement. Accordingly, the fact that UFAA relied on
testimony from some of its members to support its claims is not
dispositive. Instead, we must determine whether UFAA’s claims
and requested relief required extensive participation from, or
individualized proof related to, its agent members, keeping in
mind the focus of the requirement is administrative convenience
and efficiency.
1. UFAA Had Standing to Pursue its Claims Related
to Office Locations and Performance Standards
UFAA argues it had standing to pursue its claims related
to office locations and performance standards because it was
possible to establish the claims without individualized factual
inquiries related to each agent.6 We agree.
With respect to these claims, UFAA essentially sought
declarations that the Agreements categorically forbid Farmers
from terminating an agency based, in whole or in part, on its
dissatisfaction with the agent’s office location or failure to meet
6 Farmers does not address this issue in its respondent’s
brief.
15
performance standards. Farmers did not dispute that it
considers such factors when deciding whether to terminate an
Agreement, and has, in fact, terminated Agreements for such
reasons. The only issue before the court, therefore, was whether
the Agreements permit Farmers to terminate agencies for such
reasons. To decide that issue, the court needed only interpret
and construe the terms of the Agreements; it did not need to
consider evidence related to individual agents or the specific
circumstances under which their agencies were terminated.
The claims, therefore, satisfied the third Hunt requirement, and
UFAA had standing to pursue them.7
2. UFAA Lacked Standing to Pursue its
Unconscionability Claim
UFAA lacked associational standing to pursue its claim
seeking a declaration that the no-cause termination provisions
are unconscionable.8
7 The parties do not dispute that these claims satisfied the
other Hunt requirements.
8 lthough UFAA generally argues that the court erred in
finding it lacked associational standing, it does not specifically
address why it had standing to pursue its unconscionability
claim. Even though standing is an issue we review
independently, we are not required to develop UFAA’s arguments
for it, and its failure to provide reasoned argument and citations
to authority has forfeited the point. (Reyes v. Kosha (1998) 65
Cal.App.4th 451, 466, fn. 6 [“[a]lthough our review of a summary
judgment is de novo, it is limited to issues which have been
adequately raised and supported in plaintiffs’ brief”]; Niko v.
Foreman (2006) 144 Cal.App.4th 344, 368 [“ ‘This court is not
inclined to act as counsel for . . . any appellant and furnish a legal
argument as to how the trial court’s rulings in this regard
16
A court may refuse to enforce contracts or clauses in
contracts that are unconscionable. (Civ. Code, § 1670.5,
subd. (a).) “ ‘[U]unconscionability has both a “procedural” and a
“substantive” element,’ the former focusing on ‘ “oppression” ’
or ‘ “surprise” ’ due to unequal bargaining power, the latter on
‘ “overly harsh” ’ or ‘ “one-sided” ’ results. [Citation.] ‘The
prevailing view is that [procedural and substantive
unconscionability] must both be present in order for a court to
exercise its discretion to refuse to enforce a contract or clause
under the doctrine of unconscionability.’ [Citation.] But they
need not be present in the same degree. ‘Essentially a sliding
scale is invoked which disregards the regularity of the procedural
process of the contract formation, that creates the terms, in
proportion to the greater harshness or unreasonableness of the
substantive terms themselves.’ [Citations.] In other words, the
more substantively oppressive the contract term, the less
evidence of procedural unconscionability is required to come to
the conclusion that the term is unenforceable, and vice versa.”
(Armendariz v. Foundation Health Psychcare Services, Inc. (2000)
24 Cal.4th 83, 114, abrogated on other grounds by AT&T Mobility
LLC v. Concepcion (2011) 563 U.S. 333.)
An unconscionability claim typically cannot be resolved
simply by examining the face of the contract. (Sonic-Calabasas
A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1147.) This is because
“[u]nconscionability is a flexible standard in which the court
looks not only at the complained-of term but also at the process
by which the contractual parties arrived at the agreement and
constituted an abuse of discretion’ [citation], or a mistake of
law.”].) Nonetheless, we will exercise our discretion to consider
the issue, as its resolution impacts UFAA’s other claims.
17
the larger context surrounding the contract, including its
‘commercial setting, purpose, and effect.’ [Citations.]” (De La
Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 976.) An
unconscionability determination is “highly dependent on context,”
(Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899,
911) and “requires a court to examine the totality of the
agreement’s substantive terms as well as the circumstances of its
formation to determine whether the overall bargain was
unreasonably one-sided.” (Sonic-Calabasas A, Inc. v. Moreno,
supra, 57 Cal.4th at p. 1146.)
Given the nature of an unconscionability determination—
particularly the focus on the circumstances of the contract’s
formation and sliding scale approach—in most cases it will be
difficult, if not impossible, for an association to establish its
members’ contracts are unconscionable without individualized
proof and the participation of each member. While there may be
limited circumstances under which it is possible, this is plainly
not one of those cases.
Although UFAA provided multiple reasons why the no-
cause termination provisions are unconscionable—among them,
that agents lacked bargaining power, the provisions are
contained in contracts of adhesion, and the provisions are
“extremely one-sided”—the focus of its claim was an allegation
that Farmers had a uniform practice of informing its agents,
prior to signing the Agreements, that it terminates contracts only
for cause. In its closing argument, UFAA stressed the centrality
of this alleged practice to its claim: “We are asking the court to
declare that the three-month termination clause is
unconscionable because agents are being told don’t worry,
18
Farmers never enforces it.”9 According to UFAA, this practice
rendered every no-cause termination provision unconscionable
because Farmers’s representations constituted “substantive
procedural deception,” “negate[d] the reasonable expectations of
the agent,” and caused “unfair surprise.”
To prove its claim at trial, UFAA presented
representational testimony from several agents who said they
were told something to the effect that Farmers terminates
agencies only for cause. Farmers, however, maintained it did not
have a practice of making such representations, and presented
testimony from numerous representatives to support that
assertion. After weighing this conflicting evidence, the trial court
concluded UFAA failed to establish that Farmers had a uniform
practice of informing agents that it terminates Agreements only
for cause, a finding UFAA does not challenge on appeal.
This factual finding was fatal to UFAA’s associational
standing. Absent a showing of a uniform practice, it was
impossible for UFAA to establish its claim—that every no-cause
termination provision is unconscionable—without presenting
evidence regarding the specific representations made to each
agent before he or she signed an Agreement.10 Given the need for
individualized proof and participation of each agent, UFAA failed
to satisfy the third Hunt requirement and lacked standing to
9 On appeal, UFAA continues to maintain this alleged
practice is the crux of its unconscionability claim.
10 We acknowledge it may have been possible for UFAA to
establish its unconscionability claim without evidence of
Farmers’s representations to agents. UFAA, however, does not
argue that point, and we consider it forfeited.
19
pursue its claim.11
3. UFAA Lacked Standing to Pursue its Claim
Related to Sharing of Customer Information
UFAA also lacked associational standing to pursue its
claim that the Agreements preclude Farmers from sharing with
competitors customer information acquired by agents.12 UFAA’s
claim was premised on an allegation that Farmers
“systematically” shares such information with 21st Century,
thereby interfering with the agents’ business expectancies and
violating the covenants of good faith and fair dealing contained in
each Agreement. UFAA sought to establish its claim primarily
through representative testimony from two agents, Robinson and
Soberanes.
The trial court, however, found the agents’ testimony
showed, at most, “isolated incidents” of Farmers sharing
information with 21st Century. Given this finding, which UFAA
does not contest, UFAA could establish its claim—that Farmers
11 Even if UFAA had standing, its unconscionability claim
failed on the merits for a similar reason. As discussed above,
UFFA sought a declaration that every no-cause termination
provision is unconscionable, which was premised on an allegation
that Farmers informed each agent that it terminates contracts
only for cause. UFAA, however, does not dispute that it failed to
present sufficient evidence that Farmers made such
representations to each agent. Without such evidence, UFAA
could not establish that every no-cause termination provision is
unconscionable. Accordingly, it was not entitled to its requested
relief.
12 UFAA again failed to specifically address this issue in its
appellate briefing, which has forfeited the point. Nonetheless, we
will exercise our discretion to consider the merits of the issue.
20
is interfering with and violating each agent’s business
expectancies and contractual agreements—only by presenting, for
each individual agent, evidence that Farmers improperly shares
customer information procured by that agent. Because of the
need for individualized proof and extensive participation from
each agent, the court properly determined that UFAA lacked
associational standing to pursue this claim.13
II. UFAA Was Not Entitled to Declaratory Relief On Its
Claims Related to Office Locations and Performance
Standards
UFAA contends the trial court erred in refusing to declare
that the Agreements preclude Farmers from terminating an
agency based on its dissatisfaction with the agent’s office location
13 Even if UFAA had standing, it has not shown the trial
court erred in denying its claim on the merits. The trial court
rejected UFAA’s claim after finding it presented “no admissible or
credible evidence of any instance where customer information
was disseminated to 21st Century” by Farmers. UFAA suggests
this was error because Robinson’s testimony established that
Farmers shared her customers’ information with 21st Century.
According to UFAA, there is no possible way the customers could
have failed to renew their policy with Robinson, and then
obtained a new policy through 21st Century, unless Farmers
shared their information. We disagree. The court could have
reasonably inferred from the evidence that 21st Century
independently solicited Robinson’s customers, or the customers
independently reached out to 21st Century. Accordingly,
Robinson’s testimony did not compel a finding in UFAA’s favor.
(See Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc.
(2011) 196 Cal.App.4th 456, 466 [where an issue on appeal turns
on failure of proof, appellant’s evidence must be of such a
character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding].)
21
or failure to meet performance standards. As best we can tell,
UFAA’s primary argument is that consideration of such factors is
improper because the Agreements do not expressly prohibit
specific office locations or mandate performance standards.
We are not persuaded.
“ ‘The fundamental goal of contractual interpretation is to
give effect to the mutual intention of the parties.’ [Citations.]
‘Such intent is to be inferred, if possible, solely from the written
provisions of the contract.’ [Citations.] ‘If contractual language
is clear and explicit, it governs.’ [Citation.]” (State of California
v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195.) We strive to
“give effect to all of a contract’s terms, and to avoid
interpretations that render any portion superfluous, void or
inexplicable.” (Brandwein v. Butler (2013) 218 Cal.App.4th 1485,
1507.)
UFAA is correct that that Agreements do not expressly
prohibit specific office locations or require agents meet
performance standards. Nonetheless, Farmers may terminate
agencies for such reasons pursuant to the no-cause termination
provision. Unlike the 30-day termination provision (which may
be invoked only after a breach of the Agreement) and the no-
notice termination provision (which may be invoked only if the
agent engages in enumerated conduct), the no-cause termination
provision does not require any conditions precedent. The parties
may invoke the provision and terminate the Agreement at any
time, and for any or no reason, so long as they provide sufficient
notice. It follows that Farmers may terminate an agency under
the no-cause termination provision for reasons not specifically
listed in the Agreement, including dissatisfaction with the agent’s
office location or failure to meet performance standards.
22
UFAA’s interpretation—that Farmers may terminate
agencies only for reasons specifically listed in the Agreements—is
unreasonable, as it renders the no-cause termination provision
superfluous. The 30-day termination provision already allows
the parties to terminate an Agreement for a breach. UFAA fails
to explain how, under its interpretation, the no-cause termination
provision would operate any differently, or why a party would
ever invoke it rather than the 30-day termination provision.
UFAA suggests that allowing Farmers to terminate an
agency for reasons other than those specifically listed in an
Agreement would constitute a unilateral amendment to the
Agreement. In support, it relies on the Nevada Supreme Court’s
decision in MacKenzie Ins. v. National Ins. (Nev. 1994) 110 Nev.
503. In that case, an insurance agency sued an insurer after the
insurer unilaterally reduced the commission the agency would be
paid from fifteen percent (pursuant to the terms of the agency
agreement) to five percent. The trial court granted the insurer’s
motion for summary judgment, reasoning that, “since the
relationship between [the agency] and [the insurer] was
terminable by either party, with or without cause, the right of
termination by written notice included the lesser right of
imposing prospectively, changes in the conditions of the contract,
including the terms of compensation.” (Id. at p. 505.) The
Nevada Supreme Court reversed, holding: “The trial court
incorrectly ruled that either party to the written contract had the
‘privilege of imposing prospectively, changes in the conditions of
the contract.’ [I]f this were true, and either party had actually
had the ‘privilege’ of imposing unwanted changes in the contract
on the other, then there would be no point in having a written
contract which set the commission percentage agreed to be paid.
23
The contract gives the parties an option to terminate by giving
written notice; it does not give either party the ‘privilege of
imposing’ unilateral changes ‘in the conditions of the contract.’
[The agency] had the right to receive the fifteen percent
commission rate agreed-upon by the parties until the contract
was terminated in accordance with its terms, unless, of course,
[the agency] waived the required written notice or agreed
expressly or impliedly to accept less than was provided for in the
written contract.” (Id. at p. 506.)
MacKenzie is readily distinguishable. Unlike the insurance
company’s attempt to reduce the agency’s commission in
MacKenzie—which was contrary to the express terms of the
parties’ contract—Farmers has an explicit right under the
Agreements to terminate an agency without cause. Further,
there is nothing in the Agreements that precludes Farmers from
exercising that authority in the event it is dissatisfied with an
agent’s office location or failure to meet performance standards.
It is absurd to argue that Farmers’s exercise of a specifically
enumerated contractual right amounts to an attempt to
unilaterally rewrite the contract.
UFAA also suggests, in perfunctory fashion, that an agent’s
office location may never be a basis for termination because the
Agreements designate agents independent contractors and give
them the right to determine the time, place, and manner in which
the objectives of the Agreements are to be carried out. UFAA
does not specifically address, in any meaningful way, how these
provisions constrain Farmers’s authority under the no-cause
termination provisions.14 Consequently, we consider the point
14 UFAA suggested in its complaint that Farmer’s
termination authority is limited by the implied covenant of good
24
forfeited. (See Badie v. Bank of America (1998) 67 Cal.App.4th
779, 784–785; People v. DeSantis (1992) 2 Cal.4th 1198, 1240,
fn. 18.)
Even if we overlook the forfeiture, we do not agree that
these provisions preclude Farmers from ever terminating an
Agreement because of the agent’s office location. An agent’s
authority to determine the time, place, and manner in which the
objectives of the Agreement are to be carried out is expressly
qualified by the requirement that the agent “conform to normal
good business practice, and to all State and Federal laws
governing the conduct of the Companies and their Agents.”
Therefore, even setting aside the no-cause termination
provisions, Farmers may terminate an Agreement if the agent’s
office location violates state or federal law or does not conform to
“normal good business practice.”
UFAA maintains that the phrase “normal good business
practice” is ambiguous, and therefore should be interpreted
against Farmers, which drafted the contract. UFAA, however,
does not provide even a hint as to what we should interpret the
phrase to mean. Instead, it merely points to evidence that
operating an agency out of a personal residence may constitute a
“normal good business practice” under certain circumstances.
While that may be true, it does not help UFAA, as it implies
there are circumstances under which operating an agency out of a
personal residence is not a “normal good business practice.” If so,
the Agreements cannot be said to categorically forbid Farmers
from terminating an agency based on an agent’s office location, as
faith and fair dealing. UFAA, however, makes only passing
reference to the implied covenant in its reply brief, and provides
no meaningful analysis or authority on the issue.
25
UFAA contends.
Nor are we persuaded that Farmers’s authority to
terminate an agency if dissatisfied with the agent’s office location
is necessarily inconsistent with the agents’ designation as
independent contractors. As UFAA correctly points out, an
employer generally may exercise control over an independent
contractor’s results, but not the means by which the results are
accomplished. (S.A. Gerrard Co. v. Industrial Acc. Com. (1941)
17 Cal.2d 411, 413; accord Varisco v. Gateway Science &
Engineering, Inc. (2008) 166 Cal.App.4th 1099, 1103.)
Nonetheless, an employer of an independent contractor may
“retain some interest in the manner in which the work is done”
without altering the relationship. (Millsap v. Federal Express
Corp. (1991) 227 Cal.App.3d 425, 432; see Bates v. Industrial Acc.
Com. (1958) 156 Cal.App.2d 713, 718 [“Complete abnegation of
control is not essential to the establishment of the status of
independent contractor.”].) Accordingly, the fact that Farmers
may have some limited control over the agents’ office locations
does not necessarily render the agents something other than
independent contractors.15
III. UFAA’s Single Enterprise Arguments Are Moot
UFAA contends the trial court erred in finding it failed to
establish that FGI and the Companies are a single enterprise.
It also contends the court erroneously excluded expert testimony
15 To determine whether our interpretation of the Agreements
actually alters the agents’ purported status as independent
contractors would require consideration of numerous additional
factors. (See S. G. Borello & Sons, Inc. v. Department of
Industrial Relations (1989) 48 Cal.3d 341, 351.) Because UFAA
failed to discuss, or even acknowledge, any of those factors, we
decline to consider the issue any further.
26
on the issue. Because we conclude UFAA failed to establish its
entitlement to relief on any of its claims, these arguments are
moot and we need not consider them.
IV. UFAA’s Arguments Related to the Motion for New
Trial Are Meritless
UFAA contends the trial court erred in denying its motion
for new trial. In support, it simply rehashes its arguments
related to standing and the merits of its claims. We reject the
arguments for the reasons discussed above.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs
on appeal.
CERTIFIED FOR PUBLICATION
BIGELOW, P. J.
We concur:
GRIMES, J.
WILEY, J.
27