Cifuentes v. Costco Wholesale Corp., 2d Civil No. B231684

• Decision Date: 10 July 2012
• Docket Number: 2d Civil No. B231684
• Parties: CARLOS CIFUENTES, Plaintiff and Appellant, v. COSTCO WHOLESALE CORPORATION et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

CARLOS CIFUENTES, Plaintiff and Appellant, v. COSTCO WHOLESALE CORPORATION et al., Defendants and Respondents.

2d Civil No. B231684

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Dated: July 10, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 1338554)

(Santa Barbara County)

Carlos Cifuentes sipped three ounces of a beverage sold by Costco, his employer. A fellow employee observed the act and immediately reported it to Costco management. Cifuentes was terminated for violating the employer's "grazing policy." He sued his employer, the fellow employee, and two managers alleging contract and tort claims. All the claims are based on the contention that his termination was in retaliation for an earlier report Cifuentes had made to Costco that the fellow employee had violated company policy by hugging another employee. The trial court granted summary adjudication to all defendants on the tort claims and denied summary adjudication on the contract claims. A jury awarded him $301,378 for breach of contract.

Cifuentes appeals from that portion of the final judgment granting defendants summary adjudication on the tort claims. He asserts he has provided evidence which would support a reasonable inference that his termination was retaliatory. We affirm.

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

Appellant Carlos Cifuentes was a part-time employee who worked in the food court at respondent Costco Wholesale Corporation's store in Goleta. When he was hired in 2004, Cifuentes was given an employee agreement (Agreement) to read and sign. The Agreement stated that he would be terminated only for good cause. It contained a section entitled "Causes for Termination." One cause for termination was "Proof or confession of dishonesty including, but not limited to: [¶] a. Grazing." A footnote defines "grazing" to include "Food Court and fresh food products and any ingredients used in their preparation."

Cifuentes also was given a separate document to read and sign entitled "Grazing." It states, "Any employee observed eating merchandise belonging to Costco Wholesale without paying for it beforehand is subject to disciplinary action per page 67 (item # 15a) of the March 2004 Employee Agreement. To help clarify, please note: [repetition of footnote 32 in Agreement]." The document also states: "Thank you in advance for your attention to this important policy." The document concludes with a section entitled, "To Be Completed By Employee." It states: "I have read the above policy concerning grazing and understand its intent and meaning. I understand that any violation of this policy can result in my immediate termination per page 67, item 15a of the March 2004 Employee Agreement." Both the Agreement and grazing policy were signed by Cifuentes.¹

In September 2008, Cifuentes reported to one of his supervisors, Jose Arredondo, that he had seen front end manager, respondent Tom Current, hugging afemale employee outside the store.² Arredondo reported the incident to Cifuentes's direct supervisor, Food Court Manager Julie Ledbetter. Ledbetter reported the incident to Assistant Warehouse Manager John Swangler. Swangler and Administrative Manager Roman Aguilar met with Cifuentes. Cifuentes told them what he observed. Swangler and Aguilar thanked Cifuentes and told him he would not get in trouble for making the report.

Swangler spoke to Current. Current admitted he hugged a female employee. Swangler advised Current that he had a duty to act appropriately toward employees. Swangler did not make a written report of the incident. He did not tell Current that Cifuentes had reported the incident. In his deposition, Cifuentes stated that he had no knowledge whether any employee had told Current that Cifuentes made a report concerning him. Except for Cifuentes's deposition testimony that Current would not speak to him, followed him around, and gave him weird looks, there is no other evidence that Current knew that Cifuentes had reported the incident.

Approximately six months later, on April 7, 2009, Current was checking the food court area for cleanliness, a regular part of his job duties. Current saw Cifuentes fill a three-ounce water cup with ice and Coke from the food court soda machine. Current said he saw Cifuentes walk around the corner from the soda machine, pass two trash bins, drink some of the soda, and place the cup on a ledge next to a large trash cart.

Current, who had not observed a grazing incident previously, reported his observations to respondent, Assistant Warehouse Manager Ronald DeBrum, the highest ranking manager on duty at the time. The conversation took place between 6:00-7:00 p.m. at the front of the store near the check stands. DeBrum determined that he wanted to speak to Cifuentes to hear his side of the story and instructed Current to bring Cifuentes to his office for a meeting. Current was present when Cifuentes met with DeBrum.

Cifuentes admitted that he poured ice and Coke into a three-ounce water cup. He stated he did so only after a customer complained that the Coke was flat. He believed that the procedure he followed in testing the soda was in compliance with store policy. According to Cifuentes, Current and DeBrum told him that they did not believe he was being honest and thought he was "stealing soda." At the end of the meeting, Cifuentes was told that the incident would be reported to respondent, Warehouse Manager Jim Blount.

In separate written statements to Blount, Current and DeBrum reported that Cifuentes could not identify or describe the customer who had made the complaint. They further reported that Cifuentes could not explain why he had not followed the correct procedure of putting a small amount of soda in a cup, tasting it, and pouring out the rest; why he put ice in the soda; why he went around the corner to drink the soda; or why he placed the cup on a ledge by the trash cart rather than throwing it away.

Blount met with Cifuentes on April 10. With DeBrum present, Blount asked Cifuentes for his version of the incident. Blount cautioned Cifuentes to be completely honest and accurate. Although Cifuentes had told DeBrum and Current that he was testing the soda in response to a customer complaint, Cifuentes told Blount that another food court employee told him the soda machine was not working. Cifuentes could not identify the employee. Blount responded that he would talk to all of the employees who were working the night of the incident, but he did not expect that any of them would say they had received a customer complaint about the soda. Cifuentes then admitted that he drank the soda and said, "I am guilty;" "I'm sorry, you're right;" "I tried to save my job;" and "[t]hat's the reason why I'm lying."

After meeting with Cifuentes, DeBrum prepared a counseling notice suspending Cifuentes for three days pending investigation of the incident. The counseling notice stated that the reason for Cifuentes's suspension was "Page 69 11.3 # B [referring to Employee Agreement] Falsification of company records and/or timecards, including omitting facts or willfully giving wrong or misleading information. Thisincludes, but is not limited to: B internal investigation. Page 69 #15 Proof or confession of dishonesty including, but not limited to: a. Grazing."

Blount informed Los Angeles Region Vice President of Operations, Frank Farcone, of Current's report and Cifuentes's version of the incident. Blount reported to Farcone rather than to Sean Parks, the vice president of the region which included Goleta, because Parks was on vacation at the time. Blount did not make any recommendation to Farcone concerning termination. After Farcone discussed the matter with Blount, he made the decision to terminate Cifuentes's employment on April 13. On that day, Cifuentes called Mario Padillo, Costco personnel specialist, and complained about unfair treatment.

Cifuentes filed a complaint alleging wrongful termination, negligence, breach of contract and breach of the covenant of good faith and fair dealing against Costco; and defamation, intentional infliction of emotional distress and negligence against Costco, Blount, DeBrum, and Current. He sought compensatory and punitive damages.

Respondents filed a motion for summary judgment/summary adjudication. After extensive briefing, the trial court granted summary adjudication to respondents on the tort causes of action and denied summary adjudication on the contract causes of action. A dismissal was entered in favor of Blount, DeBrum, and Current at the pretrial conference, as all causes of action against them individually had been summarily adjudicated in their favor. Cifuentes proceeded to trial on his contract claims against Costco and obtained a jury verdict in the amount of $301,378.

On appeal, Cifuentes asserts the trial court erred in granting summary adjudication on the tort claims because material issues of fact exist as to whether Cifuentes's termination was in retaliation for his report of the Current incident. Respondents assert that the trial court correctly granted summary adjudication on the tort claims because, as a matter of law, Cifuentes failed to establish required elements of the torts alleged.

DISCUSSION

Standard of Review

"The grant and denial of summary judgment or summary adjudication motions are subject to de novo review." (Nakamura v. Superior Court (2000) 83 Cal.App.4th 825, 832.) "[I]n moving for summary judgment, a 'defendant [meets]' his 'burden of showing that a cause of action has no merit if' he 'has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete...