Filed 2/4/16 Lomeli v. Costco Wholesale Corp. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    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.

                                             3
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

                                              4
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

                                             5
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

                                                6
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

Cal.App.4th 1059, 1081; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.)

"An appellate court is not required to consider alleged errors where the appellant merely

complains of them without pertinent argument." (Strutt v. Ontario Sav. & Loan Assn.

(1972) 28 Cal.App.3d 866, 873.)

                                                9
          The argument is meritless in any event, as Judge Curiel's prior demurrer ruling

concerned the pleadings and "is not binding on subsequent summary judgment motions."

(Aerojet-General Corp. v. Commercial Union Ins. Costco. (2007) 155 Cal.App.4th 132,

139; see also Doe v. California Lutheran High School Ass'n (2009) 170 Cal.App.4th 828,

834-835 ["[P]laintiffs argue that the trial court's ruling conflicts with [a prior ruling

overruling a demurrer on grounds the School was not a business enterprise under the

Unruh Civil Rights Act.] . . . However, because the demurrer concerned the pleadings,

whereas the motion for summary judgment concerned the evidence, the two rulings were

not inconsistent"].) Costco thus had no obligation or burden to rebut the factual

allegations of Lomeli's complaint as Judge Curiel characterized them in his demurrer

ruling.

          III. Bar of Exclusive Remedy Provisions of the Workers' Compensation Act

          The workers' compensation statutes (Lab. Code, § 3200 et seq.) provide the full

remedy, "in lieu of any other liability whatsoever," for injuries "arising out of and in the

course of . . . employment." (Lab. Code, § 3600, subd. (a).) Thus, "[a]n employer's

intentional misconduct in connection with actions that are a normal part of the

employment relationship, such as demotions and criticism of work practices, resulting in

emotional injury is considered to be encompassed within the compensation bargain, even

if the misconduct could be characterized as 'manifestly unfair, outrageous, harassment, or

intended to cause emotional disturbance.' [Citation.] Workers' compensation ordinarily

provides the exclusive remedy for such an injury." (Singh v. Southland Stone, U.S.A.,

Inc. (2010) 186 Cal.App.4th 338, 367; see also Miklosy v. Regents of University of

                                              10
California (2008) 44 Cal.4th 876, 902; Livitsanos v. Superior Court (1992) 2 Cal.4th 744,

747.)

        Where an employer "steps out of its ' "proper role" ' as an employer" or engages in

"conduct of ' "questionable relationship to the employment," ' " however, that conduct "is

not encompassed within the compensation bargain and is not subject to the exclusivity

rule." (Singh v. Southland Stone, U.S.A., Inc., supra, 186 Cal.App.4th at p. 367.)

Likewise, the exclusivity provisions of the workers' compensation law will not preempt

claims for intentional or negligent infliction of emotional distress if the defendant's

conduct violates a fundamental public policy. (See Shoemaker v. Myers (1990) 52 Cal.3d

1, 15, 23 [injury resulting from wrongful termination in violation of a whistle-blower

protection statutes "lies well outside the compensation bargain"]; Gantt v. Sentry

Insurance (1992) 1 Cal.4th 1083, 1101 [" 'compensation bargain' cannot encompass

conduct, such as sexual or racial discrimination, 'obnoxious to the interests of the state

and contrary to public policy and sound morality' "].)

        Lomeli contends the workers' compensation act does not preempt her emotional

distress claim. She maintains she felt trapped during her interrogation because the door

was closed with individuals between her and the door. Lomeli argues her injuries

stemmed from the way the interrogation was conducted; that she "is basing her complaint

on the abhorrent conduct of the employer in detaining her, threatening her with arrest in

an enclosed room with three other people for over two hours over an issue involving

$31.48." She asserts Costco "attempted to deceive her by saying she was caught taking

money on camera." She argues "[i]t is clear that the interrogation was a 'witch hunt' with

                                             11
no factual basis for the accusation." According to Lomeli, her claims are not associated

with any reasonable expectation of her employment bargain because Costco violated

public policy, namely, the explicit right to privacy set forth in article I, section 1 of the

California Constitution. (Cal. Const., art. 1, § 1 ["All people are by nature free and

independent and have inalienable rights. Among these are enjoying and defending life

and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining

safety, happiness, and privacy"]; see County of Los Angeles v. Los Angeles County

Employee Relations Com. (2013) 56 Cal.4th 905, 926.)4

       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),

                                              13
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.,

                                             14
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.)


                                           18
