Case Name: Guillermo David Burger v. Starbucks Corp., et al.
Case No.: 17-CV-318605

I. Background

Plaintiff Guillermo David Burger (“Burger”) worked at a store operated by defendant Starbucks Corporation (“Starbucks”) and managed by defendant Justin Cordova (“Cordova”) (collectively, “Defendants”) in Mountain View, California. (Compl., ¶¶ 3-5.) Burger commenced this action to recover damages for injuries he sustained while cleaning up the store after raw sewage overflowed in the bathroom. (Compl., ¶¶ 7-10.)

On his day off, Burger went to the Starbucks store where he worked to pick up a bag of coffee. (Compl., ¶¶ 7-9.) When he arrived at the store, Cordova was not working and had left nonparty Luxwin Bala (“Bala”), a shift supervisor, in charge. (Compl., ¶ 11.) During Burger’s visit, he discovered raw sewage overflowing from the toilet and floor drain in the bathroom, and so he informed Bala. (Compl., ¶¶ 10-13.) She asked Burger to try to fix it, even though he was not scheduled to work at the time. (Compl., ¶ 13.) Burger agreed and began working on the bathroom. (Compl., ¶ 14.) About an hour later, when Burger learned from Bala that Cordova was not coming to help, he clocked in and continued to work. (Compl., ¶¶ 14-15.) Ultimately, Burger could not fix the bathroom, so Bala called a plumber. (Compl., ¶ 15.)

When the plumber arrived, Bala closed the store to customers at his request. (Compl., ¶ 16.) The plumber fixed the sewage problem and cleaned the bathroom floor and other affected areas with bleach. (Compl., ¶ 16.) The smell of bleach permeated the entire store, and so Bala called Cordova for advice on how to get rid of the smell. (Compl., ¶ 17.)

Bala, upon the advice of Cordova, instructed Burger to mop the bathroom floor with unlabeled chemicals, which turned out to be chlorine and ammonia. (Compl., ¶¶ 17-18.) The chlorine and ammonia created toxic fumes that injured Burger and other employees. (Compl., ¶ 19.) Burger was dizzy, nauseous, and coughing up blood, so he was rushed to the hospital. (Compl., ¶¶ 19-20.) Burger now suffers from asthma, lost his job, and lost his chance to play professional soccer. (Compl., ¶ 28.)

Burger asserts causes of action against Defendants for: (1) fraudulent concealment in violation of the Labor Code; (2) premises liability; (3) “employer ratification”; and (4) retaliation. (Compl. at pp. 7:10, 9:4, 10:10, 12:3.) Defendants demur to the first, second, third, and fourth causes of action on the ground of failure to state facts sufficient to constitute a cause of action and move to strike portions of the complaint.

II. Demurrer

Defendants argue the demurrer is sustainable “because [the pleading] shows on its face that the action is barred by the workers’ compensation exclusivity rule” and Burger “fails to state facts sufficient to state a cause of action as a matter of law.” (Dem. at pp. 1:26-2:2.) It is not particularly clear what Defendants mean by a failure to state sufficient facts “as a matter of law.” It appears, based on their memorandum of points and authorities, this second argument is simply that Burger does not allege enough facts as a general matter. The Court addresses each argument in turn.

Defendants first argue the demurrer to all four causes of action is sustainable because Burger’s exclusive remedy is workers’ compensation. Defendants’ argument is not a model of clarity, and so it is necessary to first provide some context before addressing its merits.

“Under the Workers’ Compensation Act (hereafter the Act), all employees are automatically entitled to recover benefits for injuries ‘arising out of and in the course of the employment.’” (Privette v. Super. Ct. (1993) 5 Cal.4th 689, 696-97, quoting Lab. Code, § 3600, subd. (a).) “The purposes of the Act are several[:] (1) to ensure that the cost of industrial injuries will be part of the cost of goods rather than a burden on society, (2) to guarantee prompt, limited compensation for an employee’s work injuries, regardless of fault, as an inevitable cost of production, (3) to spur increased industrial safety, and (4) in return, to insulate the employer from tort liability for his employees’ injuries.” (S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341, 354.)

In furtherance of these purposes and “to give efficacy to the theoretical ‘compensation bargain’ between the employer and employee,” the Act makes workers’ compensation the exclusive remedy against an employer for work-related injuries. (Privette, supra, 5 Cal.4th at p. 697, citing Lab. Code, § 3602.) “Where the complaint affirmatively alleges facts indicating coverage by the workers’ compensation laws, if it fails to state additional facts negating application of the exclusive remedy provision [in Labor Code section 3602], no civil action will lie and the complaint is subject to a general demurrer.” (Colombo v. State of California (1991) 3 Cal.App.4th 594, 599 [internal quotation marks and citations omitted].)

With this context in mind, the first problem with Defendants’ argument is that they fail to distinguish between the causes of action asserted against Starbucks and Cordova. The workers’ compensation exclusivity provision precludes civil actions against employers but “does not preclude the employee from suing anyone else whose conduct was a proximate cause of the injury.” (Privette, supra, 5 Cal.4th at p. 697, citing Lab. Code, § 3852.) Burger alleges he and Cordova, another employee, worked for Starbucks, their employer. Consequently, the demurrer by Cordova to all four causes of action is not sustainable based on workers’ compensation exclusivity, and this issue will only be further discussed relative to Starbucks.

Courts follow a two-step analysis to determine whether a claim is covered by workers’ compensation and thus subject to the exclusive remedy provision. (Operating Engineers Local 3 v. Johnson (“Johnson”) (2003) 110 Cal.App.4th 180, 185.) But Starbucks does not follow this two-step analysis. Instead, it concludes “Plaintiff was an employee at the time of the incident [ ] and [w]orkers’ [c]ompensation applies” without providing any legal authority or reasoning in support. (Mem. of Pts. & Auth. at p. 7:25-26; see also Mem. of Pts. & Auth. at p. 8:17-19.) This presentation is insufficient because it is conclusory. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282; Cal. Rules of Court, rule 3.1113(b) [required contents of supporting memorandum]; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.) Furthermore, although an individual must necessarily be an employee to receive workers’ compensation benefits, that is not the standard for determining whether a particular injury is covered, and thus, whether an employee is precluded from instituting a civil action. (See Johnson, supra, 110 Cal.App.4th at p. 185.)

In actuality, the first step is to determine whether the plaintiff alleges an “‘injury sustained and arising out of the course of employment’ (a compensable injury). [Citation.]” (Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund (“Vacanti”) (2001) 24 Cal.4th 800, 812.) “To be within the scope of employment, the incident giving rise to the injury must be an outgrowth of the employment, the risk of injury must be inherent in the workplace, or typical of or broadly incidental to the employer’s enterprise.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1008-09.) The central inquiry is whether the employee was performing work duties in furtherance of his or her employer’s business. (Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 354-55.) Thus, “[i]njuries sustained while an employee is performing tasks within his or her employment contract but outside normal work hours are within the course of employment.” (Ibid.)

“If the plaintiff’s claim comes within the conditions of compensation — i.e., if it is a claim for personal injury or death arising out of the course and scope of employment — one reaches the second step in the exclusivity analysis, which is to determine whether the acts or motives giving rise to the injury constitute ‘“a risk reasonably encompassed within the compensation bargain.” [Citation.]’” (Johnson, supra, 110 Cal.App.4th at p. 186, quoting Vacanti, supra, 24 Cal.4th at pp. 819-20.)

Here, Burger clearly alleges he got hurt at his workplace. Nevertheless, Starbucks does not discuss whether Burger got hurt in the course and scope of employment based on applicable law. Additionally, Starbucks does not address all of Burger’s injuries, namely the alleged retaliatory termination. Thus, Starbucks does not demonstrate all four causes of action asserted against it are based on injuries occurring in the course and scope of employment. Even if it did, Starbucks does not address the second step of the analysis. Consequently, Starbucks does not substantiate its argument that the first, second, third, and fourth causes of action are precluded because workers’ compensation is Burger’s exclusive remedy.

In summary, Defendants’ demurrer to the first, second, third, and fourth causes of action is not sustainable based on the workers’ compensation exclusivity provision.

Defendants also address each cause of action individually, generally concluding the factual allegations are insufficient to state a cause of action, but they do not provide any clear explanation or legal authority to support their conclusion. A “trial court [has] no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case. [Citation.]” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) Accordingly, Defendants do not demonstrate there is any other basis for sustaining the demurrer.

For the reasons set forth above, Defendants do not substantiate their demurrer to the first, second, third, and fourth causes of action on the ground of failure to state facts sufficient to constitute a cause of action. The demurrer is therefore OVERRULED.

III. Motion to Strike

Defendants filed a motion to strike “any and all references to punitive damages and attorneys’ fees as stated at the following paragraphs in [Burger]’s complaint[,]” particularly paragraphs B and D of the prayer for relief and paragraphs 50 to 63 of the body of the pleading. (Not. of Mot. at pp. 1:27-2:5.)

As a preliminary matter, “[a] notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.” (Cal. Rules of Court, rule 3.1322(a).) Although Defendants do list particular paragraphs of the pleading in their notice of motion, they preface their list with a statement that their motion is directed to “any and all references. . . as stated at the following paragraphs. . . .” (Not. of Mot. at pp. 1:27-2:5.) That statement makes the scope of their motion somewhat unclear. For example, the statement suggests Defendants may seek to strike every instance of a particular word or phrase, such as the phrase “punitive damages,” in the enumerated paragraphs. Alternatively, Defendants’ motion may simply be directed to the enumerated paragraphs with the introductory statement functioning as a characterization of those paragraphs.

In either case, Defendants’ introductory statement is problematic because, while paragraphs B and D consist of Burger’s requests for punitive damages and attorney’s fees, paragraphs 50 to 63 constitute the entirety of the third cause of action and do not contain any reference to attorney’s fees or punitive damages. Because the prefatory statement is inaccurate and/or imprecise, the Court disregards it and treats the motion as solely directed to the enumerated paragraphs, namely paragraph B, paragraph D, and paragraphs 50 to 63 (the entirety of the third cause of action).

A. Paragraph B

Defendants move to strike Burger’s request for punitive damages in paragraph B of the prayer for relief.

A party may move to strike improper allegations in a pleading. (Code Civ. Proc., §§ 435, subd. (b)(1), 436.) If a claim for punitive damages is not properly pleaded, it may be stricken. (Grieves v. Super. Ct. (1984) 157 Cal.App.3d 159, 164.) In order to plead a claim for punitive damages, a plaintiff must allege the defendant was guilty of malice, oppression, or fraud and the ultimate facts underlying such allegations. (Civ. Code, § 3294, subd. (a); Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

“‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Unless there is an allegation of intent to harm, to plead malice, a plaintiff must allege “the defendant was aware of the probable dangerous consequences of his [or her] conduct and [ ] willfully and deliberately failed to avoid those consequences.” (Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 895-96.) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) For purposes of both malice and oppression, despicable conduct means conduct that is “‘so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’ [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

Defendants argue Burger does not adequately allege malice or oppression sufficient to support a claim for punitive damages. But while Defendants quote the definitions above and provide a lengthy summary of general law, they do not provide any analysis to support their position. Additionally, Defendants do not address whether the allegations in the pleading are sufficient to support a claim for punitive damages based on fraud even though Burger asserts a cause of action for fraudulent concealment and seeks punitive damages in connection therewith. Consequently, Defendants do not demonstrate the allegations are insufficient to support the request for punitive damages.

Defendants also argue Burger does not allege authorization, ratification, or action on the part of officers, directors, or managing agents as necessary to support a claim for punitive damages against Starbucks specifically. To assert a claim for punitive damages against a corporation, a plaintiff must allege either a malicious, oppressive, or fraudulent act by an officer, director, or managing agent or that such individuals with control over corporate policy authorized or ratified the malicious, oppressive, or fraudulent act of an employee. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 571-74, citing Civ. Code, § 3294, subd. (b).) But Burger alleges Starbucks “deliberately” concealed the ongoing violations of Occupational Safety and Health Administration (“OSHA”) regulations that contributed to his injuries and tried to cover up the incident. (Compl., ¶¶ 22, 28.) Burger also alleges the Chief Executive Officer of Starbucks “knew or should have known that all staff mandated to use cleaning chemicals must receive training per OSHA laws,” and that “upper management” did nothing despite knowing employees were not properly being trained. (Compl., ¶¶ 53-54, 59.) Defendants do not address these allegations of knowing and intentional conduct, and it is not otherwise obvious the allegations in the pleading are insufficient. Thus, Defendants do not substantiate their argument.

In conclusion, Defendants do not demonstrate the allegations are insufficient to support the request for punitive damages. Thus, Paragraph B of the prayer for relief may not be stricken.

B. Paragraph D

Defendants move to strike the request for attorney’s fees in paragraph D of the prayer for relief, arguing Burger has not identified a statutory or contractual basis for an award of attorney’s fees.

As a preliminary matter, Defendants do not identify a statutory ground in Code of Civil Procedure section 436 for striking the request for attorney’s fees. Furthermore, Defendants do not cite any authority supporting the proposition that a request for attorney’s fees may be stricken for the reason they articulate.

As a general matter, “California follows the ‘American rule,’ under which each party to a lawsuit ordinarily must pay his or her own” attorney’s fees unless a statute or agreement between the parties provides otherwise. (Musaelian v. Adams (2009) 45 Cal.4th 512, 517, citing Code Civ. Proc., § 1021.) But there is no authority authorizing a court to strike a prayer for attorney’s fees for failure to allege the statutory or contractual basis thereof. In fact, courts have held it is error to do so. (See Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 496-97; see also Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 583 [attorney’s fees are incidental to the cause of action and the basis thereof need not be pleaded].)

In conclusion, there is no basis for striking the request for attorney’s fees in paragraph D of the prayer for relief.

C. Third Cause of Action

Defendants move to strike paragraphs 50 to 63, which is the entirety of the third cause of action. Defendants do not articulate and it is not otherwise obvious to the Court there is any reason to do so. Furthermore, “it is improper for a court to strike a whole cause of action of a pleading under Code of Civil Procedure section 436.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) The proper procedural vehicle for challenging an entire cause of action is a demurrer. (Ibid.) Accordingly, the entire third cause of action, or paragraphs 50 to 63 of the complaint, may not be stricken.

D. Conclusion

For the reasons set forth above, the motion to strike is DENIED in its entirety.