Saldana v. Globe-Weis Systems Co.

• Citation: 233 Cal.App.3d 1505,285 Cal.Rptr. 385
• Decision Date: 10 September 1991
• Docket Number: GLOBE-WEIS,No. F013629,F013629
• Court: California Court of Appeals
• Parties: Yolanda SALDANA, Plaintiff and Appellant, v.SYSTEMS CO., Defendant and Respondent.

Page 385

285 Cal.Rptr. 385

233 Cal.App.3d 1505

Yolanda SALDANA, Plaintiff and Appellant, v. GLOBE-WEIS SYSTEMS CO., Defendant and Respondent.

No. F013629.

Court of Appeal, Fifth District, California.

Sept. 10, 1991.

Review Denied Nov. 26, 1991.

[233 Cal.App.3d 1509] Robert Gray Williams, Perez, Makasian & Williams, Fresno, for plaintiff and appellant.

James D. Emerson, Emerson and Hrulegui, Fresno, for defendant and respondent.

OPINION

BUCKLEY, Associate Justice.

STATEMENT OF THE CASE

Plaintiff Yolanda Saldana (Saldana) appeals from summary judgment granted in favor of defendant Globe-Weis Systems Co. (Globe-Weis) from a complaint alleging damages in personal injury and premises liability.

In August 1985, Saldana was employed by Globe-Weis as a punch press operator when her hand caught in the punch press resulting in the surgical amputation of four fingers. The press she was using was a Rouselle manufactured punch press originally equipped with a manufacturer-provided two-hand controlled button point of operation guard and a foot switch. In 1980, the Occupational Safety and Health Administration (OSHA) cited Globe-Weis for a dangerous condition concerning the point of operation guard. Globe-Weis was ordered to install brake monitors or a positive protection point of operation device. It is disputed between the parties whether Globe-Weis installed a fixed barrier guard, which was later approved by OSHA, and then removed the fixed guard, replacing it with a Possons pull-back guard. It is undisputed that a Possons pull-back safety device was in place at the time of the accident.

Saldana filed a complaint against Globe-Weis alleging negligence and premises liability pursuant to Labor Code section 4558, subdivision (b). ¹

In a separate complaint, Saldana sued Positive Safety Manufacturing Company (Positive Safety), the manufacturer of the Possons pull-back safety device which was attached to the punch press. Upon proper motion, the two cases were consolidated into one action.

Globe-Weis moved for summary judgment on the grounds that Saldana's exclusive remedy against Globe-Weis was before the Workers' Compensation Appeals Board under section 3602, subdivision (a), and Saldana did not raise any triable issues of fact which warrant application of section 4558, a statutory exception to that exclusive remedy. (See fn. 2, infra.)

The trial court granted summary judgment on the basis that Saldana's exclusive remedy was under workers' compensation (§§ 3600 and 3602) and Saldana did not raise any triable issues of fact under section 4558. ² The court stated, "It is undisputed that the employer knowingly removed the old safety devices, but ... no evidence has been presented that the change was made in disregard of the safety of the employee; and that is an essential element of § 4558."

On appeal, Saldana contends that the trial court abused its discretion by granting the motion for summary judgment. We will affirm.

DISCUSSION

The trial court's sole function on a motion for summary judgment is issue finding, not issue determination. (Black v. Sullivan (1975) 48 Cal.App.3d 557, 567, 122 Cal.Rptr. 119.) The summary judgment procedure should be used with caution and any doubt as to the propriety of granting summary judgment should be resolved in favor of the party opposing the motion. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35-36, 210 Cal.Rptr. 762, 694 P.2d 1134.)

When a defendant moves for summary judgment, "its declarations and evidence must either establish a complete defense to plaintiff's action or demonstrate the absence of an essential element of plaintiff's case. If plaintiff does not counter with opposing declarations showing there are triable issues of fact with respect to that defense or an essential element of its case, the summary judgment must be granted." (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81, 256 Cal.Rptr. 877.)

Standard of Review

Although both Saldana and Globe-Weis argue the appeal under the abuse of discretion standard, for reasons set forth hereinafter, we are unwilling to apply that standard. We are aware of two lines of cases setting forth separate standards in the review of a summary judgment ruling by a trial court.

Globe-Weis cites our own case of Perry v. Medina (1987) 192 Cal.App.3d 603, 606, 237 Cal.Rptr. 532, as requiring application of the abuse of discretion standard. However, we have also previously stated that the proper standard of review regarding summary judgment is the independent determination of the effect of declarations (independent review standard). (American Nat. Bank v. Stanfill (1988) 205 Cal.App.3d 1089, 1097, 252 Cal.Rptr. 861; Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 80, 265 Cal.Rptr. 737.)

We now examine the position of the Fifth District relative to review of summary judgment orders. In so doing, we find that we are not alone among the districts in the contradictory application of the standard of review.

Abuse of Discretion Standard

Prior to 1973, Code of Civil Procedure section 437c provided that "the answer may be stricken out or the complaint may be dismissed and judgment may be entered, in the discretion of the court unless ..." (Code Civ.Proc., § 437c, emphasis added). Under then Code of Civil Procedure section 437c, the only question ordinarily presented on appeal was whether the trial court abused its discretion. (Grady v. Easley (1941) 45 Cal.App.2d 632, 641, 114 P.2d 635.)

In 1973, Code of Civil Procedure section 437c was revised making issuance of summary judgment mandatory if there is no triable issue of material fact. The 1973 revision, with subsequent modifications not pertinent here, still governs the grant of summary judgment. In pertinent part, it provides that "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact...." ...." (Code Civ.Proc., § 437c, subd. (c), emphasis added.) By revising Code of Civil Procedure section 437c to specifically preclude the use of discretion by the trial court, it was the intent of the Legislature to abrogate any real discretion the trial court had in granting the motion. (See Comment, Summary Judgments (1974) 5 Pacific L.J. 289.)

In a case predating the 1973 revision, it was stated that in a motion for summary judgment there is no discretion to be exercised by the trial court. (Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 266, 83 Cal.Rptr. 237.) Paradoxically, it was later stated in Whitney's that if no triable issue exists and the court errs in denying the motion, the ruling is an error of law and is automatically an abuse of discretion. (Ibid.)

Notwithstanding the clear intention of the Legislature to abrogate the use of discretion in deciding whether to grant summary judgment, ³ most districts, including the Fifth District, continue to use the standard of abuse of discretion. (People ex rel. State Lands Commission v. Superior Court (1974) 36 Cal.App.3d 727, 736, 111 Cal.Rptr. 733 [incorrectly citing the Supreme Court case of Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785 for this premise]; Black v. Sullivan, supra, 48 Cal.App.3d 557, 567, 122 Cal.Rptr. 119; Rubio v. Swiridoff (1985) 165 Cal.App.3d 400, 403, 211 Cal.Rptr. 338; Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 446, 213 Cal.Rptr. 314; Boehm v. Superior court (1986) 178 Cal.App.3d 494, 499, 223 Cal.Rptr. 716; Fireman's Fund Ins. Co. v. Fibreboard Corp. (1986) 182 Cal.App.3d 462, 466, 227 Cal.Rptr. 203; Perry v. Medina, supra, 192 Cal.App.3d 603, 606, 237 Cal.Rptr. 532; Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 107, 236 Cal.Rptr. 233; Domingue v. Presley of Southern California (1988) 197 Cal.App.3d 1060, 1063, 243 Cal.Rptr. 312; Hoffman v. Citadel General Assurance, Ltd. (1987) 194 Cal.App.3d 1356, 1362, 240 Cal.Rptr. 253; Spradlin v. Cox (1988) 201 Cal.App.3d 799, 806, 247 Cal.Rptr. 347; Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 859, 270 Cal.Rptr. 699; McAlexander v. Siskiyou Joint Community College (1990) 222 Cal.App.3d 768, 774, 272 Cal.Rptr. 70.)

Typically, the standard used is preceded by the statement, "a motion for summary judgment is addressed to the sound discretion of the trial court." (Leo F. Piazza Paving Co. v. Foundation Constructors, Inc. (1981) 128 Cal.App.3d 583, 589, 177 Cal.Rptr. 268.)

In none of the cases cited above does it appear that the issue of which "standard" to use was a contested issue on appeal. Furthermore, in none of the cases cited above was there a comparison to the independent appellate review standard nor a discussion of the rationale used in applying the abuse of discretion standard. Many of the districts and divisions which have employed the abuse of discretion standard have also, in other cases, applied the independent review standard.

So far as has been determined, only the Sixth Appellate District has steadfastly declined to apply the abuse of discretion standard.

No case could be found in which the California Supreme Court has stated, either in a holding or as dictum, which standard is the appropriate one to use for review of a summary judgment.

Independent Review

The second line of cases follows the independent review of the declarations standard. Review of a trial court's determination involves pure matters of law, requiring a reassessment of the legal significance of the documents. (LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 744-745, 176 Cal.Rptr. 224; AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)

The court must apply the same three-step analysis required of the trial court:

" 'First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond.... [p] Secondly, we determine whether the moving party's showing has established...