Lomeli v. Costco Wholesale Corp. CA4/1 (2016) · DecisionDepot
Lomeli v. Costco Wholesale Corp. CA4/1
California Court of Appeal Feb 4, 2016 No. D067028Unpublished
Filed 2/4/16 Lomeli v. Costco Wholesale Corp. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FRANCINE LOMELI, D067028
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00078468-CU-PO-CTL) COSTCO WHOLESALE CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Richard
E.L. Strauss, Judge. Affirmed.
Law Office of Jorge I. Hernandez and Jorge I. Hernandez; Simpson Law Group
and Sean Simpson, Jayme Simpson for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Tara Wilcox, Matthew S. McConnell for
Defendant and Respondent.
Plaintiff and appellant Francine Lomeli appeals from a summary judgment in
favor of her former employer, defendant and respondent Costco Wholesale Corporation
(Costco), on Lomeli's operative complaint alleging a remaining cause of action for
intentional infliction of emotional distress. In granting summary judgment, the trial court
ruled Costco met its burden to show Lomeli's emotional distress cause of action was
barred by the exclusivity provisions of the Worker's Compensation Act, that Costco's
conduct was not outrageous, and it did not intend to cause Lomeli emotional distress.
Lomeli contends the trial court erred in its ruling, seemingly because Costco failed to
prove there were no triable issues concerning the material facts as the trial court had
characterized them in a prior demurrer ruling. We conclude summary judgment was
properly granted, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND1
In August 2010, Lomeli, a Costco employee, worked in Costco's Chula Vista food
court and was assigned operator No. 100 to track her use of the cash register. Jason
Martin, an assistant general manager, oversaw the food court as part of his duties. In
early August 2010, Martin informed Costco Loss Prevention Agent Tony Hamilton that
1 We state the undisputed facts from the parties' separate statements submitted in support and in opposition of Costco's motion, and state other facts in the light most favorable to Lomeli, as the party opposing the motion, resolving evidentiary doubts and ambiguities in her favor. (Elk Hills Power, LLC v. Board of Education (2013) 57 Cal.4th 593, 606.) We grant Costco's unopposed motion to augment the record with its evidentiary objections, its lodged evidence in support of its summary judgment motion, and its reply to Lomeli's response to its separate statement of disputed and undisputed material facts. To the extent Lomeli's summary judgment opposition evidence contradicts her prior discovery responses, her discovery responses control. The rule is well settled that " '[a] party cannot create an issue of fact by a declaration which contradicts his prior [discovery responses].' " (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860.) When trying to determine if any triable issues exist for summary judgment purposes, the trial court can " 'give great weight to admissions made in deposition and disregard contradictory and self-serving affidavits of the party.' " (Ibid.) 2
the food court was experiencing "shrink," that is, a shortage typically due to mistake or
theft. Hamilton installed a hidden surveillance camera that filmed the customers at the
Chula Vista food court windows. He reviewed a transaction summary log report that
reflected an August 13, 2010 transaction in which operator No. 100 appeared to ring up
three pizzas, immediately voided them out, then rung up a hot dog and a soda for the next
customer at the window. Hamilton was aware that an indicator of possible theft was a
transaction in which an item was rung up then voided out and replaced by a less
expensive item.2 Hamilton did not know, and never learned, that Lomeli was operator
No. 100. He reported his findings to Martin on August 15, 2010, and had no further
involvement in the matter.
Martin contacted Costco Regional Loss Prevention Manager Keith Paget and
asked him to come to the Chula Vista warehouse to further look into Hamilton's findings.
Paget reviewed video from the food court and the transaction summary log report, but
could not reconcile the transactions. He had Martin pull a sales audit report showing
August 13, 2010 transactions for operator No. 100. However, Paget and Martin
2 Lomeli purports to dispute this fact, and many others, with citations to her own declaration that do not directly address or rebut the facts stated by Costco. She also purports to dispute facts with arguments without supporting citations to evidence, or argumentative statements not based on the evidence. Lomeli lodged deposition excerpts in opposition to Costco's motion, and referred to them in her opposing separate statement but those excerpts are not contained in the appellate record. In section II, post, we reject Lomeli's further attempts to dispute facts by reference to the prior demurrer ruling of Superior Court Judge Gonzalo Curiel. Though we are obligated to liberally construe Lomeli's evidence, we do not accept Lomeli's assertions that are unresponsive or without evidentiary support.
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mistakenly looked for a sale price of $29.85 rather than $32.46, as Paget did not realize
that the sales audit report totals included tax. Paget did not view other documents that
would have shown the customer purchased the items. Because of the discrepancy in the
video and transaction summary log report, Paget decided to bring Lomeli in for an
interview to see if she could give an explanation about what had happened.
On August 16, 2015, Lomeli attended a meeting in the manager's office at the
Chula Vista Costco with Paget, Martin and loss prevention employee Denisse Villagrana
(Denisse Peirce, at the time of summary judgment). Before that meeting Lomeli had
never met Paget and never had any problems with him or Martin. Paget sat between
Lomeli and the closed door to the office. During the meeting, Lomeli was asked about
the food court cash register transaction that occurred on August 13, 2010, which was
described to her, and she was told there was a surveillance camera that appeared to show
that she charged a customer for three pizzas, but only rang up a hot dog and soda, and
that Lomeli may have kept the money for the pizzas. She was asked to explain and
responded that she could not remember what had happened, but that she did not need to
steal money. Lomeli repeatedly said that it could not have been her. She was
uncomfortable and scared, but she was not physically threatened, and she never asked to
leave or was restrained from leaving during the meeting. Paget repeatedly told Lomeli
that if she did not tell the truth, the authorities would get involved. At one point, Lomeli
suggested that a customer paid for the pizzas with cash at the nearby ATM machine.
Paget asked Lomeli to write a statement, which Lomeli did in her own writing and choice
of words without time pressure. At the meeting's conclusion, Lomeli was informed she
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was being suspended for three days pending further investigation. She was asked to
return to her scheduled shift on August 21, 2010.
Paget asked loss prevention agent Mike Weaver to come to the Chula Vista
warehouse to look at video from inside the warehouse to see if the customer had used the
warehouse ATM as Lomeli suggested. Weaver found video of the customer getting cash
from the ATM from inside the warehouse, and the camera appeared to show the member
giving money to the cashier on his second visit to the food court window. Weaver
informed Paget of his findings on August 17, 2010. Martin left a message for Lomeli that
day, then asked the food court manager to try to contact her to tell her that Costco had
discovered that the customer had in fact paid for the pizzas. The manager informed
Lomeli that she had been cleared of wrongdoing and that her suspension was lifted.
Lomeli admitted that the manager did not say or do anything improper during that call.
On August 20, 2010, Lomeli returned to the warehouse, where Paget apologized to
her in person. He explained that her suspension and counseling notice had been
rescinded and she would be paid for her time off. Lomeli announced that she had
decided to resign from employment effective immediately.
Lomeli sued Costco and Paget for damages, alleging causes of action, among
others, for defamation, false imprisonment, intentional infliction of emotional distress,
and violations of the unfair competition law (UCL). She alleged in part that during the
August 16 meeting with Paget, Paget told her she was caught giving a man food without
receiving money, that she vehemently denied the accusation and felt trapped and
confined by the physical presence of two men blocking the door. She alleged that for two
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hours, Paget attempted to solicit a confession from her and repeatedly told her that if she
did not admit to stealing, the police would arrest her for theft. Lomeli alleged that Paget
demanded she write a statement but when he saw she was not writing a confession, he
began to tell her what to write and said if she cooperated, she would not go to jail.
According to Lomeli's allegations, she was distressed and traumatized, suffered severe
anxiety such that she could not sleep, and two days later was diagnosed with an acute
stress reaction and anxiety disorder.
Costco removed the complaint to federal court, where the district court dismissed
some claims and remanded Lomeli's claims for intentional infliction of emotional distress
and violations of the UCL to superior court. Back in the superior court, Costco demurred
to the complaint and also to Lomeli's first amended complaint, which contained the same
allegations in support of her emotional distress cause of action. The trial court, Judge
Curiel, overruled Costco's demurrer to Lomeli's emotional distress cause of action.
Referencing paragraph Nos. 13 through 32 of Lomeli's operative pleading, Judge Curiel
ruled the cause of action was "premised on conduct that is not part of the normal
employment relationship and that is allegedly extreme and outrageous—a two hour
interrogation and threatened incarceration over the theft of a small sum of money that
plaintiff denied in a small room in which the only door was blocked." Following
Costco's demurrers, Lomeli was left only with her cause of action against Costco for
intentional infliction of emotional distress.
Costco moved for summary judgment or alternatively summary adjudication of
Lomeli's emotional distress cause of action, as well as her claim for punitive damages. In
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part, it argued Lomeli's claim was barred by the Workers' Compensation Act, and further,
she could not prove Costco either engaged in extreme and outrageous conduct or
intended to cause her severe emotional distress. Costco submitted declarations from
Hamilton and Paget, as well as the food court manager who had called Lomeli after the
meeting. Lomeli opposed the motion, submitting her own declaration, as well as that of
Gloria Fausto, a person who claimed to be "in the Loss Prevention/Asset Protection
industry . . . ." Fausto purported to give an opinion concerning industry standards
relevant to Costco's interview techniques with Lomeli.
In reply, Costco objected on various grounds to Lomeli's evidence. In particular, it
objected to portions of Lomeli's declaration in part on grounds it was contradicted by her
sworn deposition testimony. It also objected to Fausto's declaration in its entirety on
grounds it lacked personal knowledge, foundation, or evidentiary support; was based on
speculation and conclusions; and was irrelevant, impermissible hearsay and improper
expert opinion.
Sustaining some of Costco's evidentiary objections, including to Fausto's entire
declaration,3 the trial court granted summary judgment. It ruled Costco met its burden to
show Lomeli's claim was barred by the Workers' Compensation Act in that her interview
3 Lomeli does not challenge the trial court's evidentiary rulings or attempt to demonstrate it abused its discretion in those rulings. (See Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 [applying abuse of discretion standard to court's final rulings on evidentiary objections on a motion for summary judgment].) We therefore disregard Fausto's declaration in our review, as well as the other evidence excluded by the trial court. (Code Civ. Proc., § 437c, subd. (c) [court shall consider all evidence set forth in 7
concerned a suspected theft during work hours, which stemmed from her employment
relationship with Costco and did not implicate any fundamental public policy. The court
additionally ruled the evidence established that Costco's conduct was neither extreme and
outrageous, nor intended to cause Lomeli emotional distress.
Lomeli appeals from the ensuing judgment in Costco's favor.
DISCUSSION
I. Summary Judgment Principles and Standard of Review
A defendant is entitled to summary judgment " 'only if "all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." [Citation.] To determine whether triable
issues of fact do exist, we independently review the record that was before the trial court
when it ruled on defendants' motion. [Citations.] In so doing, we view the evidence in
the light most favorable to plaintiffs as the losing parties, resolving evidentiary doubts
and ambiguities in their favor.' " (Elk Hills Power, LLC v. Board of Equalization, supra,
57 Cal.4th at pp. 605-606; see also Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610,
618 [review is de novo].) This court "consider[s] all the evidence set forth in the moving
and opposition papers except that to which objections have been made and sustained.
[Citation.] Under California's traditional rules, we determine with respect to each cause
of action whether the defendant seeking summary judgment has conclusively negated a
necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is
summary judgment papers except that to which objections have been made and sustained].) 8
there a material issue of fact that requires the process of trial, such that the defendant is
entitled to judgment as a matter of law." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th
317, 334-335.)
II. Effect of Prior Demurrer Ruling
In a threshold argument, Lomeli contends the trial court erred by granting
summary judgment on her emotional distress claim because it disregarded Judge Curiel's
prior demurrer ruling. Specifically, she contends the court made its decision "without
foreclosing the facts articulated in the previous rulings by [Judge Curiel]"; that Judge
Curiel's prior demurrer ruling "provide[d] mandatory guidance" and set forth "facts that
must be considered and precluded by [Costco] to prove there are no genuine issues of
material fact." Lomeli maintains that because Costco "failed to address the specific facts
articulated by Judge Curiel's ruling," summary judgment was improperly granted. She
repeats this argument in connection with her contentions concerning workers'
compensation exclusivity, and the evidence supporting the elements of a claim for
intentional infliction of emotional distress.
Lomeli's claim of error is made without cogent legal analysis or citation to
authority (see Cal. Rules of Court, rule 8.204(a)(1)(B), (C)), and thus we may treat it as
waived or abandoned. (Sims v. Department of Corrections & Rehabilitation (2013) 216
There are several fatal deficiencies in these arguments, as Costco points out.
Lomeli's specific factual assertions set forth above, as well as her opening brief's factual
summary of the manner of her interrogation including Paget's asserted threat of
incarceration, are supported only by citations to her original and first amended
complaint's allegations. Lomeli's citation to her own pleading is irrelevant, as it is
"fundamental that to defeat summary judgment a plaintiff must show 'specific facts' and
cannot rely on allegations of the complaint" (Roman v. BRE Properties, Inc. (2015) 237
4 Lomeli does not claim she was subject to discrimination, which would put her outside the compensation bargain. (Compare, Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1363 ["where a plaintiff can allege that she suffered emotional distress because of a pattern of continuing violations that were discriminatory, her cause of action for infliction of emotional distress will not be barred by the exclusivity provisions of workers' compensation laws"] & Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492 ["emotional distress claims are not barred by the exclusivity rule to the extent they seek emotional distress damages for the alleged work-related injury discrimination"].) Nor did she attempt to allege a cause of action for slander, which involves damage to reputation and is not within the risk of employment within the purview of the workers' compensation law. (See Howland v. Balma (1983) 143 Cal.App.3d 899, 904-905.) 12
Cal.App.4th 1040, 1054), even when the allegations are verified. (Bently Reserve L.P. v.
Papaliolios (2013) 218 Cal.App.4th 418, 426.) Lomeli asserts her first amended
complaint alleged Costco "purposefully intimidated" her and alleged all the required
elements of intentional infliction of emotional distress, but that assertion does not suffice
on appeal to demonstrate that summary judgment was improperly granted.
Further, Lomeli's factual summary includes reference to Fausto's declaration, as
does her attempt to dispute the events of the August 16, 2010 meeting, when she argues
she "disputed each and every [undisputed fact] with citations to Expert Testimony and
depositions." That declaration, as we have stated (footnote 2, ante), was excluded by the
trial court in its entirety. Thus, to the extent Lomeli bases her claim on that testimony,
including the notion that Costco's interrogation was outside industry practice of
acceptable interrogation techniques, we do not consider it in assessing worker's
compensation exclusivity.
Finally, while Lomeli argued generally below that her claim was not preempted by
the workers' compensation law, and cited to cases such as Gantt v. Sentry Insurance,
supra, 1 Cal.4th 1083 for the proposition that the compensation bargain cannot
encompass conduct contrary to public policy, she did not refer to the California
Constitution, much less its privacy provision in article I, section 1, as the source of that
public policy in her opposing summary judgment papers. "The principles of 'theory of
the trial' apply to . . . summary judgment motions" (North Coast Business Park v. Nielsen
Construction Co. (1993) 17 Cal.App.4th 22, 29, disagreed with on other grounds in San
Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315),
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and accordingly, " '[a] party is not permitted to change his position and adopt a new and
different theory on appeal.' " (North Coast Business Park v. Nielsen Construction Co., at
p. 29.) Thus, we do not consider her claim, as " '[i]t is fundamental that a reviewing court
will ordinarily not consider claims made for the first time on appeal which could have
been but were not presented to the trial court.' " (Newton v. Clemons (2003) 110
Cal.App.4th 1, 11.) "Appellate courts are loath to reverse a judgment on grounds that the
opposing party did not have an opportunity to argue and the trial court did not have an
opportunity to consider." (JRS Products, Inc. v. Matsushita Electric Corp. of America
(2004) 115 Cal.App.4th 168, 178.)
We are left with Lomeli's assertion on appeal that her "employment was to deliver
hot dogs, pizza and other food over the counter to customers" and "[h]er employment had
nothing that can reasonably be associated with confinement, harassment, threats of
criminal prosecution for something she did not do." She argued below that employer
conduct that is intentional, or extreme and outrageous, is not preempted by the workers'
compensation act. But these assertions, even if they were supported by some record
evidence, are misplaced. The question at hand is whether Costco's conduct or
misconduct occurred at the worksite "in the normal course of the employer-employee
relationship . . . ." (Miklosy v. Regents of University of California, supra, 44 Cal.4th at p.
902.)
In this respect, accepting all of Lomeli's admitted evidence and drawing all
inferences in her favor, it shows Costco undertook an inquiry into what Hamilton and
Paget considered to be a possible theft based on a flawed or careless investigation (i.e.,
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making erroneous assumptions and failing to review other video or other documents that
would have shown the customers paid for their food), and then during the August 16,
2010 meeting took a harsh position with Lomeli, telling her that if she did not tell the
truth, the authorities would get involved. Though Lomeli maintains she disputed
Costco's version of the events that occurred at the August 16, 2010 meeting, Lomeli
admitted in her deposition and was deemed to have admitted in discovery responses that
neither Paget nor anyone else said or did anything improper during the meeting: no
voices were raised, she was never physically threatened or prevented from leaving, and
she was never touched in an improper manner. Lomeli admitted she never tried to leave
or asked to leave the meeting.
We conclude as a matter of law that Costco's worksite inquiry and investigation
into possible theft was conduct inherent in, and within the normal course of, the
employment relationship. (Miklosy v. Regents of University of California, supra, 44
Cal.4th at p. 902.) " '[R]easonable attempts to investigate employee theft, including
employee interrogation, are [also] a normal part of the employment relationship' and
cannot give rise to a court action against the employer." (Charles J. Vacanti, M.D., Inc.
v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 821, quoting Fermino v. Fedco, Inc.
(1994) 7 Cal.4th 701, 717.) And "normal employer actions causing injury would not fall
outside the scope of the exclusivity rule merely by attributing to the employer a sinister
15
intention." (Fermino, at p. 717.)5 Lomeli has not demonstrated on appeal that triable
issues of material facts exist as to the reasonableness of Costco's investigation or
interrogation, including as to her detention within the manager's office, so as to preclude
summary judgment on her intentional infliction of emotional distress cause of action.
"So long as the basic conditions of compensation are otherwise satisfied [citation], and
the employer's conduct neither contravenes fundamental public policy [citation] nor
exceeds the risks inherent in the employment relationship [citation], an employee's
emotional distress injuries are subsumed under the exclusive remedy provisions of
workers' compensation." (Livitsanos v. Superior Court, supra, 2 Cal.4th at p. 754; see
also Jones v. Department of Corrections and Rehabilitation (2007) 152 Cal.App.4th
1367, 1382.)
5 Lomeli does not discuss Fermino v. Fedco, Inc., supra, 7 Cal.4th 701. In that case, an employee was suspected of stealing jewelry from her employer. She was called into the manager's office where she was interrogated by the personnel manager, the loss prevention manager, and two security agents. (Id. at p. 707.) One of the agents told her two individuals who had witnessed her stealing were waiting in the next room, and he demanded that she confess. (Ibid.) She was told that each time she denied her guilt she would be assessed a point, and once she reached 14 points she would be turned over to the police. (Ibid.) The clerk proceeded to repeatedly and vehemently deny the theft, during which the loss prevention manager gave her "points," hurled profanities, and continued to demand she confess. (Ibid.) The clerk's requests to leave the room and call her mother were denied, and she was physically compelled to remain in the room for more than one hour. (Ibid.) When she rose and attempted to leave the security guards slid in front of the door and gestured at her to stop. She finally broke down in tears and confessed, but the interrogators admitted that there was no one waiting and they believed she was innocent. (Ibid.) The court held that an employer's false imprisonment of an employee is always outside the scope of the compensation bargain, and that the plaintiff in that case had stated a cause of action for false imprisonment. (Id. at pp. 723, 724.) Here, plaintiff's deposition admissions demonstrate that Costco did not intentionally confine Lomeli against her will, and she was not subject to the same type of physical restraint as the plaintiff in Fermino. 16
Lomeli's position otherwise was squarely rejected by the California Supreme
Court in Livitsanos, when it explained that "the proposition that intentional or egregious
employer conduct is necessarily outside the scope of the workers' compensation scheme
is erroneous. This was the precise problem which we addressed in Cole [v. Fair Oaks
Fire Protection Dist. (1987)] 43 Cal.3d 148, where we noted that many intentional acts
by an employer could be expected to cause emotional distress and yet do not lie outside
the proper scope of workers' compensation. Even intentional 'misconduct' may constitute
a 'normal part of the employment relationship.' [Citation.] As we subsequently observed
in Shoemaker v. Myers, supra, 52 Cal.3d 1, 'Even if such conduct may be characterized
as intentional, unfair or outrageous, it is nevertheless covered by the workers'
compensation exclusivity provisions.' " (Livitsanos v. Superior Court, 2 Cal.4th at p.
752, italics added.)
Our conclusion ends the summary judgment inquiry on Lomeli's sole cause of
action for intentional infliction of emotional distress. Because there are no triable issues
of fact as to Lomeli's substantive cause of action, her claim for punitive damages also
fails. (See Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 789, fn. 2; accord, Caira v.
Offner (2005) 126 Cal.App.4th 12, 39, fn. 20 [punitive damages are ancillary to a valid
cause of action].)6
6 Were we to address Costco's motion as to the required element of extreme and outrageous conduct (see Hughes v. Pair (2009) 46 Cal.4th 1035, 1050), we would likewise conclude summary judgment was properly granted. "A defendant's conduct is 'outrageous' when it is so ' " 'extreme as to exceed all bounds of that usually tolerated in a civilized community.' " ' " (Id. at pp. 1050-1051.) Costco's investigation and questioning 17
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
of Lomeli constitutes personnel management, which, even if improperly motivated, is "not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society." (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)
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AI Brief
AI-generated · verify before citing
Holding. The court held that the plaintiff's claim for intentional infliction of emotional distress was barred by the exclusivity provisions of the Workers' Compensation Act because the employer's investigation into suspected employee theft occurred within the normal course of the employment relationship.
Issues
Whether the trial court erred in granting summary judgment by disregarding a prior demurrer ruling.
Whether the plaintiff's claim for intentional infliction of emotional distress is barred by the exclusivity provisions of the Workers' Compensation Act.
Whether the employer's conduct during an investigation into suspected employee theft constitutes extreme and outrageous conduct outside the scope of the employment relationship.