Opinion
San Francisco County Super. Ct. No. CGC-03-421792
NEEDHAM, J.
Appellant Ellen Dennis contends the trial court erred in granting summary judgment against her claims of wrongful termination of employment, and related claims. We affirm.
I. FACTS AND PROCEDURAL HISTORY
A. Appellant’s Employment and its Termination
From 1995 until her discharge in 2002, appellant worked as a sales representative employed by the respondent California State Automobile Association Inter-Insurance Bureau (CSAA). Appellant’s duties primarily related to the sale of automobile insurance policies and other policies to members of the CSAA. Appellant alleged that she received about half of her income from commissions on issuance of new policies, and half from “renewals” i.e., payments made to her when old policies she had sold were periodically renewed.
According to numerous documents appellant signed, including her employment application and other employment-related documents such as employee handbooks, her employment with CSAA was “at-will” and could be ended by either party without cause. For instance, appellant’s application for employment at CSAA stated, “In consideration of my employment, I agree to conform to CSAA’s policies, rules and regulations. I understand and agree that my employment is at-will, and therefore, my employment and compensation can terminate, with or without cause, and with or without notice, at any time, at my option or CSAA’s option. I further understand and agree that this at-will employment relationship as defined above will remain in effect throughout my employment with CSAA, unless it is modified by a specific, express written employment contract which is signed by the President of CSAA and me.” Appellant signed this document, immediately after the quoted language. Appellant also admitted at her deposition that she had not signed an agreement with the president of CSAA that would vary the terms of her at-will employment agreement.
Other documents provided to appellant and signed by her also reinforce the at-will language in the employment application. For instance, the 1995 employee handbook appellant was given at the outset of her employment, entitled, “You and the CSAA,” stated, in bold letters: “In the absence of a written employment agreement for a specified term, signed by a duly authorized CSAA officer, you are free to terminate the employment relationship at any time for any reason or for no reason and CSAA reserves to itself the right to do likewise.” Similarly, the CSAA document entitled “Employment Policies and Rules of Conduct,” also states in bold lettering: “The employment relationship can be terminated by the employee or by CSAA, with or without cause, at any time. Neither CSAA’s disciplinary procedures, which allow CSAA employees an opportunity, where appropriate, to correct deficiencies in their performance, nor any other policy of CSAA alters this at-will status. At-will employment status may be modified only by a written agreement which specifically provides otherwise, signed by a duly authorized CSAA Officer.”
In the same vein, the sales representative compensation plan for appellant’s position at CSAA contains a formal appointment agreement governing her employment. That agreement states, in pertinent part: “It is mutually agreed that this agreement and the employment hereunder may be terminated by either party hereto, for any reason or for no reason, with or without prior notice.” Both appellant and a designated representative of CSAA signed this agreement, on the page containing this provision.
In 1999, appellant received a new version of the CSAA employee handbook, called “Partnering for Success.” As with the previous documents signed by appellant, this document states: “All employment is ‘at-will.’ No individual, other than the vice president of Human Resources, has the authority to enter into any agreement that modifies an employee’s at-will status. In the absence of a written employment agreement for a specified term, signed by the vice president of Human Resources, you are free to terminate the employment relationship at any time with or without cause. The company reserves the right to do likewise. [¶] Neither disciplinary procedures, which may allow employees the opportunity, where appropriate, to correct deficiencies in their performance, nor any other policy of the company alters this at-will status.”
In 2001, appellant received a new version of the sales representative compensation plan. This document also stated, in pertinent part: “It is mutually agreed that this agreement and the employment hereunder may be terminated by either party hereto, for any reason . . . with or without prior notice.” Once again, appellant signed this agreement.
At her deposition taken in this action, appellant conceded that she understood the meaning of the term “at-will,” as meaning that either party could terminate the employment at any time for any or no reason, and she conceded that no one at CSAA had told her that the “at-will” language did not apply to her.
In addition, the 2001 sales representative compensation plan also provides that “Notwithstanding anything to the contrary contained elsewhere in this Plan, any misrepresentation or misconduct may be grounds for immediate termination of employment.” The 1999 version of the employee handbook similarly states, “It is important for you to understand that any conduct that adversely affects the interests of the company, its members or employees may also result in disciplinary action up to and including termination.”
Appellant worked for CSAA for seven years, from 1995 to 2002. During the course of her employment, appellant twice took family leave, and she did not encounter any problems from her employer in that regard. In fact, appellant took two “intermittent” leaves, in which she did not come to work on certain days, without encountering any criticism or hostility on this account.
In March of 2002, a particular incident occurred which led to the termination of appellant’s employment. This incident involved appellant’s improper handling of an automobile insurance policy application, which appellant had prepared on behalf of Rick and Rosine Scannell. The Scannells had had a previous insurance policy with CSAA, which expired for nonpayment of premium, and appellant prepared a new policy for them. This insurance policy later attracted attention from other CSAA personnel, because an accident was reported to have occurred on the same date the policy was issued, and the policy appeared to have been backdated to cover the accident.
CSAA employees Felix Tomasino and Michael Bland conducted an investigation of the relevant facts, which we summarize as follows. Rick Scannell and his wife came into the office to meet with appellant on March 20, 2002, regarding an application for auto insurance coverage which they had discussed with appellant by telephone on the day before, March 19, 2002. On the previous day, appellant had faxed the Scannells an application form, but they had not filled out and returned the form on that day. When the Scannells came in the next day, March 20, 2002, they told appellant that Rick Scannell’s wife had been in an auto accident the evening before, that is, on March 19, 2002, when she rear-ended another vehicle. According to appellant, she told the Scannells orally that the prior accident was not covered. However, as prepared by appellant on her computer, the formal insurance documents relating to the application for insurance make no reference to that accident. As a result, that accident was not used by CSAA to determine whether a policy should be issued, nor the proper premium to charge, in light of the fact that the Scannells’ true “driver safety record” (DSR) and “years activity free” (YAF) scores should have included the omitted accident.
The application as “uploaded” from the CSAA computer by appellant also indicated an effective date of March 19, 2002, the previous day. As a result, the prior auto accident appeared to be a covered event under the CSAA policy, even though the policy had not actually been issued until the day after the accident occurred. If the true facts had been noted on the documents appellant prepared by computer, CSAA’s underwriters could have rejected the policy as written, and the accident would not have been covered retroactively by the policy.
Appellant admitted to the CSAA investigators, who asked her about the facts, that she had prepared the documents in this way and had performed the improper “uploading,” and that she had indicated Mrs. Scannell was accident-free, although appellant knew about the accident the previous day. As a result of the investigation of these facts, CSAA decided to terminate appellant’s employment. She was discharged on June 28, 2002, “for failure to follow required CSAA guidelines and procedures for underwriting and binding auto insurance policies.”
B. Litigation History in the Trial Court
Almost one year after her discharge, appellant filed this action alleging wrongful termination, and other torts. The operative version of the complaint is the first amended complaint, which contains four causes of action: (1) breach of an implied contract not to discharge appellant except for good cause; (2) breach of an implied covenant of good faith and fair dealing; (3) wrongful termination in violation of public policy, in alleged retaliation for appellant’s exercise of her right to take family leave; and (4) intentional infliction of emotional distress as a result of the discharge.
CSAA moved for summary judgment on all of appellant’s claims. CSAA presented argument and evidence showing that appellant was employed “at-will” so that no good cause was required for her discharge, and in any event appellant’s admitted improper actions regarding the Scannells’ insurance application constituted good cause. CSAA also argued that there had been no breach of the covenant of good faith and fair dealing; no wrongful termination of appellant in retaliation for her taking of family leave; and no intentional infliction of emotional distress.
Appellant failed to file opposition, and the motion for summary judgment was granted as unopposed.
Later, appellant’s attorney filed a motion to set aside the judgment, based upon alleged excusable neglect by appellant’s attorney in failing to file an opposition. The trial court granted the motion to set aside, and appellant was allowed to file opposition papers.
In her opposition papers, appellant contended that despite the written “at-will” agreements she had signed, she was not in fact employed at-will, and there was no good cause for her discharge, for what she characterized as relatively minor mistakes regarding the Scannell insurance application. She also contended that her discharge by CSAA had breached a covenant of good faith and fair dealing, and was in retaliation for her taking family leave. Finally, appellant contended she could validly assert a cause of action for intentional infliction of emotional distress.
After considering appellant’s opposition papers, the trial court again granted summary judgment on all of appellant’s claims, and entered judgment against her.
II. DISCUSSION
A. Standard of Review
On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612 (Artiglio).) We then determine whether the defendant seeking summary judgment has negated a necessary element of the plaintiff’s case, or has demonstrated that there is no material issue of fact requiring a trial, so that the defendant is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
“In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court’s determination of a motion for summary judgment. [Citation.]” (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.)
B. Appellant Was Employed At-Will.
At the outset, appellant contends she was not employed at-will, or without an agreement that she could only be discharged for good cause, and she contends a showing of good cause was necessary for her discharge.
We first review applicable legal principles. In the absence of a written employment agreement stating otherwise, there is a statutory presumption that employment is at-will. (Lab. Code, § 2922.) “An at-will employment may be ended by either party ‘at any time without cause,’ for any or no reason, and subject to no procedure except the statutory requirement of notice.” (Guz, supra, 24 Cal.4th at p. 335, quoting Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680 (Foley).)
The statutory presumption of at-will employment is strong, but it can be overcome by proof that the employer and employee have impliedly agreed that the employee will be terminated only for good cause. (Guz, supra, 24 Cal.4th at p. 336; Foley, supra, 47 Cal.3d at p. 677.) It is the employee’s burden to prove an agreement not to terminate without good cause, and thus to rebut the statutory presumption of at-will employment. (See Foley, supra, at p. 682.)
“Generally, courts seek to enforce the actual understanding of the parties to a contract, and in so doing may inquire into the parties’ conduct to determine if it demonstrates an implied contract.” (Foley, supra, 47 Cal.3d at p. 677.) Various factors may be used to establish the existence and content of an employment agreement, including personnel policies or practices of the employer, the employee’s longevity of service, and actions or communications of the employer reflecting assurances of continued employment. (Foley, supra, at p. 680.) In this context, appellant contends that her seven years of longevity with CSAA, the existence of employer policies and practices suggesting progressive discipline and contemplating longevity of service, and her receipt of two awards granting her additional authority in binding insurance policies, could raise an issue of fact concerning the need for good cause, despite the “at-will” language she signed.
“[A]t-will provisions in personnel handbooks, manuals, or memoranda do not bar, or necessarily overcome, other evidence of the employer’s contrary intent [citations], particularly where other provisions in the employer’s personnel documents themselves suggest limits on the employer’s termination rights [citations]. The reasoning . . . is that parol evidence is admissible to explain, supplement, or even contradict the terms of an unintegrated agreement, and that handbook disclaimers should not permit an employer, at its whim, to repudiate promises it has otherwise made in its own self-interest, and on which it intended an employee to rely.” (Guz, supra, 24 Cal.4th at pp. 339-340, fn. omitted.)
Critically, however, an alleged oral implied contract cannot overcome an at-will provision in a written document signed by the employee. (Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 362-363 (Cruey); see also Guz, supra, 24 Cal.4th at p. 340, fn. 10.) The express at-will provision controls, because “[t]here cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results. [Citations.]” (Shapiro v. Wells Fargo Realty Advisors (1984) 152 Cal.App.3d 467, 482, disapproved on another point in Foley, supra, 47 Cal.3d at pp. 688, 700 & fn. 42; accord, Cruey, supra, at p. 362; Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 630 (Camp); Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1386-1390 (Eisenberg).)
Appellant seeks to distinguish Eisenberg, supra, a decision by Division Three of our own Appellate District, because the employee in issue in that case had significantly less seniority in the job than appellant did. It is true that the employee in Eisenberg had much less seniority (less than a month) than appellant did, but that fact was not determinative in the Eisenberg decision, which turned on the fact that the employee had signed certain documents indicating his employment was at-will, and the other evidence showed his discharge was not a breach of an implied contract or covenant. (Eisenberg, supra, 74 Cal.App.4th at pp. 1390-1391.)
In the present case, appellant signed numerous documents indicating she was employed at-will. These documents included her employment application and other employment-related documents such as employee handbooks and employee compensation plans, which expressly stated that her employment with CSAA was “at-will” and could be ended by either party without cause. Appellant also twice signed an agreement stating, “It is mutually agreed that this agreement and the employment hereunder may be terminated by either party hereto, for any reason . . . with or without prior notice.” In light of these express statements in signed documents, case law indicates appellant could not properly establish an implied in fact promise to the contrary, requiring that any discharge be supported by a showing of good cause. (Cruey, supra, at p. 362; Camp, supra, 35 Cal.App.4th at p. 630; Halvorsen v. Aramark Uniform Services, Inc. (1998) 65 Cal.App.4th 1383, 1388.)
However, appellant argues that these written agreements might not bar extrinsic evidence of a subsequent agreement or understanding on appellant’s part that good cause was required for her discharge. She relies on McLain v. Great American Ins. Companies (1989) 208 Cal.App.3d 1476, 1480, 1483-1487 (McLain). McLain is distinguishable, because in McLain the employee only signed a single document, an employment application form which was filled out after the terms of the employment were already negotiated, and which contained on its reverse side certain at-will language that Mr. McLain testified he had never read at the time. (See id. at pp. 1480, 1485.) Even that language was arguably ambiguous, in that it indicated the terms of McLain’s employment could be changed in the future, suggesting that the at-will nature of his employment could also subsequently have been changed. (Ibid.)
The more recent decision in Cruey, supra, 64 Cal.App.4th at pages 362-365, is closer to the facts of our case, and is inconsistent with appellant’s arguments. In Cruey, as in our case, the employee had signed a document expressly stating that the employment was at-will, and the court found summary judgment was proper, because he was an at-will employee. (Ibid.) In appellant’s case, there are actually a series of documents starting with an employment application signed at the time the employment began, and continuing consistently thereafter, with no changes in the at-will nature of the employment relationship. Therefore, under Cruey, appellant’s employment was at-will. (Ibid.)
In order to insure that nothing is overlooked, however, we will also proceed to examine whether there was good cause for appellant’s discharge.
C. There was Good Cause for Appellant’s Discharge.
Assuming that good cause was required for appellant’s discharge, the record shows that appellant committed improper acts involving the Scannell insurance matter, which injured her employer’s interests and constituted good cause for discharge.
Appellant was discharged “for failure to follow required CSAA guidelines and procedures for underwriting and binding auto insurance policies.” The evidence presented by CSAA shows this statement of good cause was accurate, and that appellant’s discharge followed from her incorrect and misleading processing of the Scannells’ insurance application, which constituted improper conduct and harmed the interests of CSAA. It is undisputed that the Scannells had told appellant on March 20, 2002 that Mrs. Scannell had been in an auto accident the evening before, that is, on March 19, 2002. However, as prepared by appellant on her computer, the application for insurance makes no reference to that accident. The application as “uploaded” from the CSAA computer by appellant also indicated an effective date of March 19, 2002, the day previous to its actual issuance. As a result, the prior auto accident could not be properly used to determine an adequate risk premium, or correctly evaluate whether coverage should be issued, and the prior accident could become a covered event under the CSAA policy even though the accident occurred before the policy was issued.
Appellant’s actions in this regard exposed her employer to a claim for insurance for an accident that should not have been covered at all by the policy, because the accident had already occurred when the policy was issued. As relevant to such misconduct and harm to employer interests, the 2001 sales representative compensation plan provides: “Notwithstanding anything to the contrary contained elsewhere in this Plan, any misrepresentation or misconduct may be grounds for immediate termination of employment.” The 1999 version of the employee handbook also states, “It is important for you to understand that any conduct that adversely affects the interests of the company, its members or employees may also result in disciplinary action up to and including termination.”
Thus, even if good cause were required for appellant’s discharge, appellant could be properly discharged “for failure to follow required CSAA guidelines and procedures for underwriting and binding auto insurance policies.” Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 95-97, 100, 106-108 (Cotran) is instructive in this regard. In Cotran, our Supreme Court faced a situation in which an investigation disclosed evidence of improper employee conduct, and the employee was discharged as a result. In such a situation, our high court indicated that the courts must defer to legitimate managerial discretion in determining, in good faith, the existence of good cause for discharge. (Id. at pp. 100, 107-108.) In the present case there is no dispute that an investigation was conducted, in which appellant was interviewed and asked for her side of the story, and she admitted she had acted improperly. The investigation thus provided reasonable grounds for believing that appellant had engaged in improper conduct, which management determined in its discretion was sufficient for discharge. (See Ibid.; accord, Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 264-265.)
Moore v. May Dept. Stores Co. (1990) 222 Cal.App.3d 836, 840 (Moore) is also instructive. In Moore, summary judgment was affirmed, where an employee’s mistakes and violations of company procedures regarding safeguarding jewelry from the risk of theft resulted in a decision to discharge her that was within the proper scope of managerial discretion. (Moore, supra, at p. 840.) As in Moore, appellant has not raised any relevant issue of fact as to the existence of a good faith reason for the discharge, constituting good cause. Therefore, summary judgment on this cause of action was proper. (Ibid.)
D. Appellant’s Claim of a Breach of an Implied Covenant Likewise Fails.
Appellant also claims that her discharge violated an implied covenant of good faith and fair dealing contained in her employment contract. The trial court properly rejected this claim.
Our conclusion that plaintiff failed to show triable issues concerning breach of implied contract is also fatal to her claim for breach of the implied covenant of good faith and fair dealing. The covenant of good faith and fair dealing cannot impose substantive terms and conditions beyond those to which the parties actually agreed. (Guz, supra, 24 Cal.4th at pp. 348-351.) In addition, as we have previously observed, appellant’s discharge was supported by good cause (Moore, supra, 222 Cal.App.3d at p. 840), and there is no showing of bad faith conduct by CSAA extraneous to the employment contract, that would give rise to a breach of the covenant of good faith and fair dealing. Thus, summary judgment was also proper on this cause of action. (Ibid.; Eisenberg, supra, 74 Cal.App.4th at pp. 1390-1391.)
E. Appellant’s Public Policy and Retaliation Claims are Without Merit.
Appellant additionally contended, in her third cause of action, that her discharge violated public policy and constituted illegal retaliation against her for exercising her right to take family leave, or perhaps for exercising other legal rights. The trial court correctly found that these claims were without merit.
“[T]he elements of a cause of action for retaliation [for] violation of [the Moore-Brown-Roberti Family Rights Act (Gov. Code, §§ 12945.1, 12945.2, hereafter CFRA)] . . . are as follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination . . . because of her exercise of her right to CFRA leave.” (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261 (Dudley), fn. omitted.)
Respondent does not dispute that the first three elements for a cause of action for retaliation are satisfied, but asserts that appellant cannot show there was a causal connection between the protected activity and the employer’s action as required by the fourth element. In this context, an employee bears the initial burden of presenting a prima facie case showing that the employer subjected her to an adverse employment action, and there was a causal connection between the protected activity and the employer’s action. (Dudley, supra, 90 Cal.App.4th at p. 261; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70 (Morgan); see also Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 (Martin).) If a plaintiff makes this initial showing, the employer must come forward with evidence of a legitimate nondiscriminatory reason for the discharge, and the plaintiff is then required to show that this stated reason is in fact a mere pretext for unlawful retaliation. (Morgan, supra, at pp. 75-76, 80; Martin, supra, at p. 1735.)
Appellant presented evidence that she took two “intermittent” periods of family leave, and her discharge followed an investigation that began a few days after she returned from one such “intermittent” period of family leave. However, she presented no evidence of the required causal connection or link between her family leave and the actual discharge. (See Dudley, supra, 90 Cal.App.4th at p. 261; Martin, supra, 29 Cal.App.4th at p. 1735.) Thus, appellant did not properly carry her initial burden of showing unlawful retaliation.
Further, even if appellant had properly carried her initial burden, CSAA came forward on summary judgment with extensive evidence showing that there was a legitimate, non-discriminatory reason for the discharge, i.e., appellant’s admitted improper conduct with regard to the Scannell insurance application. (See Morgan, supra, 88 Cal.App.4th at pp. 75-76, 80.) Therefore, in order to avoid summary judgment on such a claim, appellant was required to show “‘substantial responsive evidence’” that the legitimate reasons asserted by the employer were merely a pretext for unlawful employment action. (Martin, supra, 29 Cal.App.4th at p. 1735.) “For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Ibid.)
Thus, CSAA presented evidence of a legitimate reason for the discharge, i.e., “failure to follow required CSAA guidelines and procedures for underwriting and binding auto insurance policies” in connection with the processing of the Scannell insurance application. Appellant could not simply rest on speculation alone. Appellant however does not point to any substantial responsive evidence of pretext that would undermine CSAA’s evidence as to this legitimate reason for the discharge. Appellant did not, for instance, present evidence that anyone in management criticized appellant for taking leave; in fact appellant twice took leave without encountering any problems from her employer or supervisors in connection with those leaves. There is nothing other than appellant’s speculation to support her contention that CSAA’s reasons for the discharge were a pretext for an unlawful employment action, and thus there is no substantial responsive evidence of pretext sufficient to avoid summary judgment. (Martin, supra, 29 Cal.App.4th at p. 1735; Morgan, supra, 88 Cal.App.4th at pp. 75-76, 80.)
Appellant also suggested in a written argument filed in the trial court that even if she was not discharged in retaliation for taking family leave, she might have been discharged in retaliation for refusing to violate other laws regarding issuance of insurance policies under the Insurance Code or Vehicle Code, or she might have been discharged in order to avoid making payments to her on the periodic “renewals” of insurance policies she had previously sold, which was a major component of her income. However, in the third cause of action of the first amended complaint that is under review here, there are no such public policy or retaliation claims regarding a discharge resulting from disputes about “renewals” or Insurance Code or Vehicle Code issues actually asserted. Appellant’s retaliatory termination claims are limited to the issue of retaliation for taking family leave. Therefore, additional claims raised in argument regarding those other matters of a discharge related to “renewals” or Insurance Code or Vehicle Code issues were not asserted in the relevant pleadings and those issues are not properly before us on appeal. (Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1131-1132 (Robinson).)
The subject of “renewals” is mentioned in the first amended complaint as an item of damages sought for the discharge, but is no longer alleged to be the basis for the discharge.
Appellant points out in her reply brief on appeal that she had raised the issue of a possible discharge to avoid paying “renewals” in a previous pleading, her original complaint, which briefly mentions this issue in paragraph 36 of that superseded pleading, as part of the cause of action for breach of an implied contract. However, even that glancing mention of a claim regarding a discharge to avoid paying commissions on “renewals” was not re-alleged in the first amended complaint that was before the trial court on summary judgment, and which is under review here. The prior superseded pleading is no longer relevant, and must be disregarded. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884; Lee v. Bank of America (1994) 27 Cal.App.4th 197, 215; Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1307; Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1144.)
In her reply brief on appeal, appellant also improperly refers for the first time on appeal to the provisions of Civil Code section 1633.10, regarding the ability of a party to correct or avoid the effect of an error made in an automated electronic transaction. However, this statute was not cited in the operative pleading, or in the opposition papers filed in the trial court, or in appellant’s opening brief on appeal, so any argument based on it was waived. (See Robinson, supra, 183 Cal.App.3d at pp. 1131-1132.) Further, this statute was designed as a remedy for errors of transmission or for automated transactions, and the statute does not purport to immunize employees from discipline when they make serious errors in preparing original documents, such as the insurance application document containing misleading information that was prepared by appellant.
For the same reasons, appellant errs when she claims that the trial court committed an “abuse of discretion” by not addressing the issue of a discharge to avoid payment of “renewals.” As we have pointed out, those claims regarding a discharge to avoid paying “renewals” were not even properly asserted in the relevant pleadings. (Robinson, supra, 183 Cal.App.3d at pp. 1131-1132.) In addition, as previously observed, the evidence in the record shows that appellant’s discharge actually resulted from her incorrect processing of the Scannell insurance application, i.e., “failure to follow required CSAA guidelines and procedures for underwriting and binding auto insurance policies.” Her discharge thus did not concern or arise from any dispute over payment for “renewals” or other issues, and instead arose from good cause. (Moore, supra, 222 Cal.App.3d at p. 840.)
Appellant also suggests the trial court erred by referring to payments on “renewals” as payments involving “accrued commissions.” However, this terminology used by the trial court was a reasonably understandable shorthand term for more proper but cumbersome alternatives such as commission payments for renewals of policies that had previously been sold, or the more colloquial but ambiguous term favored by appellant, “renewals.” Further, any technical error in using that terminology was obviously harmless here, because the pleadings under review did not assert that appellant was discharged in order to deprive her of “renewals.” Instead, the evidence shows that CSAA discharged appellant as a result of her improper actions regarding the Scannell insurance application, which constituted good cause. (Moore, supra, 222 Cal.App.3d at p. 840.)
F. Appellant’s Claim for Intentional Infliction of Emotional Distress also Fails.
Appellant finally contends that her discharge constituted the tort of intentional infliction of emotional distress. This claim is without merit.
Appellant’s cause of action for emotional distress is barred by the worker’s compensation laws. When a plaintiff alleges injury sustained and arising out of the course of employment, the exclusive remedy provisions of the Workers’ Compensation Act (Lab. Code, §§ 3600 et seq.) apply, “notwithstanding that the injury resulted from the intentional conduct of the employer, and even though the employer’s conduct might be characterized as egregious.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 15 (Shoemaker).) “[W]hen the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 (Cole).)
Similarly, our Supreme Court held in Livitsanos v. Superior Court (1992) 2 Cal.4th 744, that “claims for intentional or negligent infliction of emotional distress are preempted by the exclusivity provisions of the workers’ compensation law, notwithstanding the absence of any compensable physical disability.” (Id. at p. 747.) The Supreme Court rejected both “the proposition that intentional or egregious employer conduct is necessarily outside the scope of the workers’ compensation scheme” and any attempted distinction between physical and emotional injury. (Livitsanos, supra, at p. 752.) Allegations of intentional employer misconduct are thus not sufficient to avoid the exclusivity provisions of the workers’ compensation system. (Cole, supra, 43 Cal.3d at pp. 159-161 [noting that “[a]n employer’s supervisory conduct is inherently ‘intentional’”].)
Appellant’s cause of action for emotional distress is thus based on alleged employer conduct that was a normal part of the employment relationship as described in Cole, and she did not present evidence of any other conduct that was actually outrageous and actionable. Appellant’s cause of action for intentional infliction of emotional distress is therefore without merit, and the trial court properly granted summary judgment against this cause of action as well. (Shoemaker, supra, 52 Cal.3d at p. 25; Cole, supra, 43 Cal.3d at pp. 159-161; see also Valenzuela v. State of California (1987) 194 Cal.App.3d 916, 923-924.)
III. DISPOSITION
The judgment is affirmed.
We concur.
SIMONS, Acting P. J. GEMELLO, J.