Espinoza v. Crane Co., B194121 (Cal. App. 10/24/2007)

• Decision Date: 24 October 2007
• Docket Number: B194121
• Court: California Court of Appeals Court of Appeals
• Parties: ARTURO ESPINOZA, Plaintiff and Appellant, v. CRANE CO., et al., Defendants and Respondents.

Page 1

ARTURO ESPINOZA, Plaintiff and Appellant, v. CRANE CO., et al., Defendants and Respondents.

B194121

Court of Appeals of California, Second Appellate District, Division Four

October 24, 2007

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County, No. LC073672, Bert Glennon, Judge. Reversed and remanded.

Law Offices of Stuart W. Fest and Stuart W. Fest for Plaintiff and Appellant.

Knott & Glazier, Steven E. Knott, Deborah M. Parker and Celeste M. Brecht for Defendants and Respondents.

MANELLA, J.

INTRODUCTION

Appellant Arturo Espinoza appeals from a judgment of dismissal entered after respondents' nonstatutory motion to dismiss appellant's complaint was granted by the trial court. Appellant contends the procedure followed by the trial court infringed his right to due process. Appellant also contends respondents should have brought the motion as one for summary judgment, which the trial court would have been compelled to deny, as he raised a triable issue of material fact. As we conclude appellant's first contention requires reversal, we do not reach the second.

BACKGROUND

Appellant filed his complaint January 24, 2006, alleging negligence against his employers, respondents Crane Co., Crane Aerospace & Electronics, P.L. Porter Co., P.L. Porter Controls, Inc., and Crane Hydro-Aire, Inc.¹ The complaint alleged appellant was injured while operating a Bliss C-35 OBI Punch Press in the course of his employment, as a result of respondents' removal of or failure to install a point of operation guard, knowing such action created a risk of serious injury. By inference, the complaint alleged the machine that caused his injuries was a power press within the meaning of Labor Code section 4558.² Three weeks later, respondents filed an answer consisting of a general denial and 44 affirmative defenses, including the allegation that notwithstanding section 4558, appellant's sole remedy was provided by the California Worker's Compensation Law.³

On May 26, 2006, less than 60 days after filing their answer, respondents filed a motion "to dismiss for lack of subject matter jurisdiction," to be heard June 20, 2006. Respondents asserted in the moving papers that appellant was not entitled to the exception to worker's compensation exclusivity provided by section 4558, because the machine operated by appellant was not a "power press." In support of the motion, respondents submitted the declaration of Francisco Valencia, the manager who hired appellant, and appellant's answers to form interrogatories regarding his employment, injury and investigation.

Valencia stated that at the time of his injury, appellant was operating a "ballizer," which he described as a "piston-driven system that sizes the internal diameter for metal parts." He claimed the machine did not utilize a die, or cut, form or stamp material of any kind, and that "its sole function [was] to size the internal diameter of previously-manufactured metal parts . . . by forcing a piston through the metal parts to ensure that they meet specified tolerances."

On June 6, 2006, appellant brought an ex parte application to strike the motion to dismiss, or to remove it from the court's calendar. Appellant objected to the motion on the ground that the action had been properly brought under section 4558, that there was no statutory authority for a motion which circumvented the requirements of a motion for summary judgment, that opposing counsel had not consulted appellant's counsel regarding the scheduling of the motion and that appellant's counsel would be away at the time the motion was calendared. Appellant submitted the declaration of his attorney, Stuart W. Fest, in support of the application. Among other things, Fest stated he had not yet retained an expert, and that he would have to do so, schedule an inspection of the machine, and obtain the expert's report before he could respond to the motion. He also stated he needed to complete scheduled depositions in order to oppose the motion with the testimony to be obtained. He claimed that CAL-OSHA's investigation and photographs would show the removal of the point of operation guard was intentional, and that he would need time to subpoena such evidence.

The trial court did not rule on the application to dismiss the motion, granting only the request to continue the hearing to July 20, 2006. Appellant opposed the motion on essentially the same legal grounds urged in his ex parte application — that subject matter jurisdiction may not be raised by means of a nonstatutory motion to dismiss, and that the motion was one for summary judgment requiring adherence to the procedures of section 437c of the Code of Civil Procedure.⁴ At the hearing, appellant argued he was denied due process by the procedure chosen by respondents. Appellant also opposed the motion with declarations and other evidence.

In his declaration, appellant described the machine as a hydraulically-powered horizontal power press that re-formed the internal diameter of metal tubes with a ram that pushed through the tubes, generating metal shavings. Appellant also submitted the declaration of Kenneth Alvin Solomon, an engineer who had testified in many cases involving power and punch press injuries. In relevant part, he stated the machine was a power press, and explained its function. Solomon then provided a lengthy description of what he called the die, which he stated formed the tube by forcing it into a uniform interior shape. In Solomon's opinion, the machine was not a measuring device.

In reply, respondents submitted the declaration of their expert, engineer Stephen P. Andrew, who stated that when he inspected the operation of the machine, he observed the ram slide through the hollow cylinder. If the inside diameter of the cylinder was large enough, the cylinder was dropped into a bucket; if not, the operator removed it and discarded it. He concluded the machine did not contain a die, as the ram did not form material, and thus was not a power press. Respondents also submitted a video disc depicting an operator inserting tubes into the cradle of the machine, the ram sliding easily through the tube, and the tube dropping into the bucket.

After counsel had argued the motion to dismiss, the trial court stated it had considered all the evidence. The court recognized the conflicting opinions of the experts, and stated its belief that the part, which according to appellant's expert was a die, was really a measuring device, as suggested by respondents' expert. The trial court granted the motion and entered an order dismissing the action August 1, 2006. In its written order, the court found that based upon the moving and opposition papers and evidence, it did not have subject matter jurisdiction, because the claims asserted in the complaint fell within the exclusive jurisdiction of the WCAB, and did not fall under the exception stated in section 4558. Appellant filed a written objection to the court's order on the ground that it failed to comply with the requirements of section 437c.⁵ The court overruled appellant's objection to the order of dismissal, and appellant timely filed a notice of appeal September 18, 2006.

DISCUSSION

Appellant contends the trial court erred in hearing respondents' motion to dismiss without requiring adherence to procedures that would preserve his right to due process, such as those set forth in section 437c. We agree.

Respondents' motion to dismiss was based upon a claim that the superior court lacked subject matter jurisdiction, because the machine did not qualify under section 4558's exception to the exclusive jurisdiction of the WCAB. (See Lab. Code, § 3600.) The parties disputed whether the machine that injured appellant was a power press within the meaning of section 4558, subdivision (a)(4), viz., a "material-forming machine that utilizes a die which is designed for use in the manufacture of other products."

Whether an injury-causing machine is a power press is ordinarily a factual issue to be resolved by the jury. (Islas v. D & G Manufacturing Co., Inc. (2004) 120 Cal.App.4th 571, 580 (Islas).) "That its resolution also determines whether [the employee] falls outside the `exclusive remedy' rule of the Labor Code does not alter this conclusion, given that factual issues pertinent to application of this rule are generally submitted to the jury." (Ibid., citing Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1056-1060, [whether injury occurred within scope of employment factual issue for jury], and McLandrich v. Southern California Edison Company (S.D.Cal. 1996) 917 F.Supp. 723, 727 [existence of employer-employee relationship factual issue for jury].) In Islas, we held the trial court erroneously resolved the factual issue pursuant to Evidence Code section 400 et seq., which did not authorize a dismissal based upon a finding of preliminary facts. (Islas, supra, 120 Cal.App.4th at pp. 577-579.)⁶

Had respondents proceeded by way of summary judgment, appellant would have been afforded the following procedural safeguards of section 437c: Service of the motion 75 days before hearing, plus five days if mailed; a separate statement of material facts the moving party contends are undisputed, served with the moving papers; an initial burden on the moving party to show there is no triable issue as to any material fact; a requirement that the trial court deny or continue the motion for further discovery upon good cause shown by the opposing party; and, if the motion is granted on the ground that there is no triable issue of material fact, an order in which the court must specify its reasons and specifically refer to the evidence indicating there is no triable issue. (§ 437c, subds. (a), (b)(1), (c) & (g).) Respondents suggest appellant waived the requirements by agreeing to a notice period shorter than 75 days. However, appellant consistently objected to respondents'...