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Paul Caleo and Katrina Durek Obtain Judgment of Non-Suit for Starbucks based on Workers Comp Exclusive Remedy in Lawsuit alleging Damages from Exposure to Cleaning Chemicals

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February 1, 2020

Workers’ Comp Exclusivity Rule at jury trial where employee alleged damages from exposure to cleaning chemicals.  

Congratulations to the Burnham Brown team of Paul Caleo and Katrina Durek who were successful in obtaining a Judgment of Non-Suit against the Plaintiff on behalf of their clients Starbucks and Justin Cordova in the matter of Guillermo David Burger v Starbucks Corporation et al, Santa Clara County Superior Court Case No. 17CV318605. After eight days of jury trial, Judge Christopher Rudy granted Non-Suit to the Defendants pursuant to CCP Section 581c, concluding that the former employee Plaintiff had failed to present sufficient evidence to satisfy the elements of each of the three separate causes of action alleged, all based on exceptions to the Workers’ Compensation Exclusivity Rule.  

On Dec. 12, 2016, Plaintiff, a 24-year old Starbucks barista, went to the Starbucks he worked at in Mountain View, on his day off. He went to the bathroom and observed a sewage overflow and reported it to the store supervisor who asked him to clock in and assist with stopping the sewage. Plaintiff and other employees threw towels down onto the sewage water to try and stop it spreading into the front of the store. Plumbers were called to fix the sewage issue and cleaned the store with bleach. Plaintiff claimed he and the other employees were then asked to complete the usual store closing procedures. Plaintiff claimed he cleaned the floors with the standard floor cleaning solution, under the direction of the store management.

Plaintiff alleged he suffered injuries first from exposure to the extra strength bleach used by the plumbers to clean-up the sewage spill, and then from a chemical reaction caused when the bleach residue left on the floors by the plumbers mixed with the store's floor cleaning solution as he was mopping the floors creating a “toxic cloud.”  

Plaintiff made a workers' compensation claim as a result of the incident and received workers' compensation benefits, including medical treatment. Plaintiff then sued Starbucks and the store manager. Plaintiff claimed chemical burn injuries including lung damage and irritation and sensitivity to chemicals. Plaintiff played college soccer and claimed he was denied an opportunity to pursue athletic scholarships at certain universities as a result of his decreased lung capacity and inability to perform at the same level as before the incident. He sought recovery for his past and future pain and suffering, past and future medicals and future lost earnings.

Plaintiff also sought punitive damages for the defendants' alleged conduct.

Plaintiff’s lawsuit alleged causes of action that were exceptions to the workers’ compensation exclusivity rule including fraudulent concealment pursuant to Labor Code section 3602(b)(2); premises liability under the dual capacity doctrine; and retaliation pursuant to section Labor Code section 1102.5.

On behalf of their clients, the Burnham Brown team argued that Plaintiff’s lawsuit was barred by the workers' compensation rule of exclusivity. Additionally, they contended throughout the lawsuit that Plaintiff suffered no injury as a result of his exposure to sewage water or the bleach used by the plumbers; that there was no significant chemical reaction between the bleach and the store floor cleaner; and that as a result, Plaintiff had no injuries or damages. 

Through detailed pre-trial motions in limine based on the rule in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, the Burnham Brown team was successful in excluding from evidence Plaintiff's expert's opinions as to the alleged dangerousness of the cleaning chemicals used by the Plaintiff and that Plaintiff was working in a "toxic chlorine gas" as a result of a reaction between the floor cleaning chemical and the bleach used by the plumber.

At the close of Plaintiff's case after eight days of trial, the Burnham Brown team moved for nonsuit pursuant to CCP section 581c. They argued that there was insufficient evidence that would permit or allow the jury to find some of the necessary elements of each of the plaintiff's three causes of action. The trial judge agreed and granted the motion and judgment was entered for Starbucks and its store manager Justin Cordova against the Plaintiff.

A Motion for Summary Judgment on behalf of Starbucks had been denied prior to trial.  Plaintiff’s demand was 750K.  Defendants served a CCP 998 statutory offer of 7.5K.  Defendants filed a cost bill in excess of 100K based on the successful statutory offer. Plaintiff appealed the Judgment entered against him.  Defendants obtained a Judgment against Plaintiff for 43K.  Plaintiff agreed to waive his appeal rights in exchange for Defendants not seeking to execute against the Judgment.

Mr. Caleo and Ms. Durek wish to thank their colleague Mark Heisey for his efforts in assisting in drafting the motions in limine and other brief work.

Don’t hesitate to email Paul Caleo or Katrina Durek at pcaleo@burnhambrown.com and kdurek@burnhambrown.com to find out more about the facts of this case and to learn how Mr. Caleo can assist you in defending litigation in California and how Ms. Durek can assist you in defending litigation in California, Oregon and Washington State. 


Paul Caleo
Katrina R. Durek
Katrina Durek

February 1, 2020

Workers’ Comp Exclusivity Rule at jury trial where employee alleged damages from exposure to cleaning chemicals.  

Congratulations to the Burnham Brown team of Paul Caleo and Katrina Durek who were successful in obtaining a Judgment of Non-Suit against the Plaintiff on behalf of their clients Starbucks and Justin Cordova in the matter of Guillermo David Burger v Starbucks Corporation et al, Santa Clara County Superior Court Case No. 17CV318605. After eight days of jury trial, Judge Christopher Rudy granted Non-Suit to the Defendants pursuant to CCP Section 581c, concluding that the former employee Plaintiff had failed to present sufficient evidence to satisfy the elements of each of the three separate causes of action alleged, all based on exceptions to the Workers’ Compensation Exclusivity Rule.  

On Dec. 12, 2016, Plaintiff, a 24-year old Starbucks barista, went to the Starbucks he worked at in Mountain View, on his day off. He went to the bathroom and observed a sewage overflow and reported it to the store supervisor who asked him to clock in and assist with stopping the sewage. Plaintiff and other employees threw towels down onto the sewage water to try and stop it spreading into the front of the store. Plumbers were called to fix the sewage issue and cleaned the store with bleach. Plaintiff claimed he and the other employees were then asked to complete the usual store closing procedures. Plaintiff claimed he cleaned the floors with the standard floor cleaning solution, under the direction of the store management.

Plaintiff alleged he suffered injuries first from exposure to the extra strength bleach used by the plumbers to clean-up the sewage spill, and then from a chemical reaction caused when the bleach residue left on the floors by the plumbers mixed with the store's floor cleaning solution as he was mopping the floors creating a “toxic cloud.”  

Plaintiff made a workers' compensation claim as a result of the incident and received workers' compensation benefits, including medical treatment. Plaintiff then sued Starbucks and the store manager. Plaintiff claimed chemical burn injuries including lung damage and irritation and sensitivity to chemicals. Plaintiff played college soccer and claimed he was denied an opportunity to pursue athletic scholarships at certain universities as a result of his decreased lung capacity and inability to perform at the same level as before the incident. He sought recovery for his past and future pain and suffering, past and future medicals and future lost earnings.

Plaintiff also sought punitive damages for the defendants' alleged conduct.

Plaintiff’s lawsuit alleged causes of action that were exceptions to the workers’ compensation exclusivity rule including fraudulent concealment pursuant to Labor Code section 3602(b)(2); premises liability under the dual capacity doctrine; and retaliation pursuant to section Labor Code section 1102.5.

On behalf of their clients, the Burnham Brown team argued that Plaintiff’s lawsuit was barred by the workers' compensation rule of exclusivity. Additionally, they contended throughout the lawsuit that Plaintiff suffered no injury as a result of his exposure to sewage water or the bleach used by the plumbers; that there was no significant chemical reaction between the bleach and the store floor cleaner; and that as a result, Plaintiff had no injuries or damages. 

Through detailed pre-trial motions in limine based on the rule in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, the Burnham Brown team was successful in excluding from evidence Plaintiff's expert's opinions as to the alleged dangerousness of the cleaning chemicals used by the Plaintiff and that Plaintiff was working in a "toxic chlorine gas" as a result of a reaction between the floor cleaning chemical and the bleach used by the plumber.

At the close of Plaintiff's case after eight days of trial, the Burnham Brown team moved for nonsuit pursuant to CCP section 581c. They argued that there was insufficient evidence that would permit or allow the jury to find some of the necessary elements of each of the plaintiff's three causes of action. The trial judge agreed and granted the motion and judgment was entered for Starbucks and its store manager Justin Cordova against the Plaintiff.

A Motion for Summary Judgment on behalf of Starbucks had been denied prior to trial.  Plaintiff’s demand was 750K.  Defendants served a CCP 998 statutory offer of 7.5K.  Defendants filed a cost bill in excess of 100K based on the successful statutory offer. Plaintiff appealed the Judgment entered against him.  Defendants obtained a Judgment against Plaintiff for 43K.  Plaintiff agreed to waive his appeal rights in exchange for Defendants not seeking to execute against the Judgment.

Mr. Caleo and Ms. Durek wish to thank their colleague Mark Heisey for his efforts in assisting in drafting the motions in limine and other brief work.

Don’t hesitate to email Paul Caleo or Katrina Durek at pcaleo@burnhambrown.com and kdurek@burnhambrown.com to find out more about the facts of this case and to learn how Mr. Caleo can assist you in defending litigation in California and how Ms. Durek can assist you in defending litigation in California, Oregon and Washington State. 


Paul Caleo
Katrina R. Durek
Katrina Durek