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PRICE v. STARBUCKS CORP.
192 Cal.App.4th 1136 (2011)
DRAKE PRICE, Plaintiff and Appellant,
v.
STARBUCKS CORPORATION, Defendant and Respondent.
No. B219501.
Court of Appeals of California, Second District, Division Three.
January 20, 2011.
OPINIONALDRICH, J.— Plaintiff and appellant Drake Price worked at Starbucks as an entry-level barista for approximately 13 scheduled shifts before he was fired. He sued Starbucks Corporation (Starbucks) on behalf of himself and a putative class, seeking to recover unpaid wages, penalties, and damages, alleging Labor Code violations, including failure to timely pay wages upon termination, failure to pay an additional hour of reporting time pay on the day he was fired, and failure to issue a wage statement that complied with the Labor Code. Starbucks challenged the pleadings, and the trial court dismissed the noncompliant wage statement cause of action and granted a motion to strike the allegations that Price was entitled to continuing wages because Starbucks failed to timely pay wages upon termination. Starbucks then
successfully moved for summary judgment on the remaining causes of action in the complaint, which focused on Starbucks's purported failure to pay Price an extra hour of reporting time pay on the day he was fired. We affirm. FACTUAL AND PROCEDURAL BACKGROUND1. Facts Alleged in the Complaint1
Price was an entry-level employee at Starbucks from October 22, 2007, through November 16, 2007, when he was terminated.2 Price was scheduled to work November 11, but he called the store and informed a coworker that he was unable to work. Price called the store later that day, and he was informed by a coworker that he was not scheduled to work for the rest of the week. Price's coworker told him to call the branch manager regarding his schedule. The next day, the branch manager left Price a voice mail message stating that Price should "come to the store on November 16, 2007, to have a talk." On November 16, Price arrived at the store, and the branch manager informed Price that he "was letting him go." Price received two paychecks; one paycheck for the work he performed up until November 10, and another paycheck for two hours of reporting time pay for the meeting on November 16. The earnings statements attached to these paychecks are exhibits to the complaint.
1. The allegations are taken from the second amended complaint. Price sought leave to file a third amended complaint which expanded the definition of the putative class to include all California employees who did not receive proper reporting time pay at termination. The trial court granted the motion, deemed it filed on the date of the summary judgment hearing, and the parties stipulated to having the summary judgment apply to the third amended complaint.
3. Unless otherwise indicated, all further statutory references are to the Labor Code.
4. Section 226, subdivision (a) sets forth nine itemized requirements for a wage statement. Price contends Starbucks's wage statements do not comply with three of the requirements because the statements do not list total hours worked, net wages earned, and all applicable hourly rates. Price contends "total" means grand total, the sum of the regular and overtime rates. He also contends that Starbucks's use of "amount paid," following gross pay and deductions does not comply with the requirement to show "net wages." Finally, Price contends the earnings statement lists the regular rate of pay, but fails to list the overtime rate of pay, requiring him to ensure that the overtime rate is one and one-half his regular rate of pay. Because we address the failure to plead an injury, we do not reach these issues.
5. Price does not seek injunctive relief under section 226, subdivision (g), nor could he because he lacks standing as a former Starbucks employee.
6. Section 226, subdivision (e) states: "An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees."
7. We granted Starbucks's request for judicial notice of the legislative history of section 226, which confirms the legislative intent that to recover damages, employees must suffer an injury resulting from the missing or inaccurate information. (Sen. Com. on Industrial Relations, Analysis of Assem. Bill No. 3731 (1975-1976 Reg. Sess.) as amended May 21, 1976.)
8. Price alleged Starbucks employees suffer from disabilities, but he does not allege he suffers from the disability or any connection between the disability and an alleged injury arising from the purportedly missing information from the earnings statements.
9. We granted Price's request for judicial notice of the dictionary definition of "total," to support his noncompliant wage statement cause of action and "layoff" to support his continuing wage claim arising from failure to timely pay wages upon discharge, in addition to a DLSE document entitled History of California Minimum Wage, and two DLSE opinion letters addressing the obligation of an employer to pay wages at the time of a temporary layoff, and the obligation to pay wages during a shutdown. None of these documents is relevant to resolve this appeal.
10. This interpretation of the reporting time pay regulation is consistent with the DLSE, the state agency authorized to interpret and enforce California's labor laws. (See Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 563 [67 Cal.Rptr.3d 468, 169 P.3d 889].) Although not binding on a court, the DLSE's construction is entitled to consideration and respect. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105, fn. 7 [56 Cal.Rptr.3d 880, 155 P.3d 284].)
11. We do not consider Price's claim for the 43 minutes of unpaid wages because the issues raised by a motion for summary judgment are framed by the pleadings, and a party cannot defeat summary judgment on a theory not pleaded. (See Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265 [102 Cal.Rptr.2d 813]; see also Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225 [96 Cal.Rptr.3d 744].)
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