Yanez v. Plummer

• Citation: 164 Cal.Rptr.3d 309,221 Cal.App.4th 180
• Decision Date: 05 November 2013
• Docket Number: C070726
• Court: California Court of Appeals
• Parties: Michael YANEZ, Plaintiff and Appellant, v. Brian PLUMMER, Defendant and Respondent.

221 Cal.App.4th 180

164 Cal.Rptr.3d 309

Michael YANEZ, Plaintiff and Appellant,

v.Brian PLUMMER, Defendant and Respondent.

C070726

Court of Appeal,

Third District, California.

Filed November 5, 2013

See 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1185 et seq.

APPEAL from a judgment of the Superior Court of Placer County, Colleen M. Nichols, Judge. Reversed. (No. S-CV-0026760)

Larry Lockshin and Jennifer Marsh, Sacramento, for Plaintiff and Appellant.

Hansen, Kohls, Sommer & Jacob, LLP, Daniel V. Kohls and Christine E. Jacob, Sacramento, for Defendant and Respondent.

BUTZ, J.

Plaintiff Michael Yanez sued his former employer, Union Pacific Railroad Company (Union Pacific), for wrongful discharge, as well as Union Pacific's in-house counsel, Brian Plummer, for legal malpractice, breach of fiduciary duty, and fraud.

Union Pacific fired Yanez for dishonesty, citing a discrepancy between a witness statement that Yanez wrote and a deposition answer he gave concerning a coemployee's on-the-job injury (the deposition answer occurred in the coemployee's lawsuit against Union Pacific under the Federal Employers Liability Act (FELA; 45 U.S.C. § 51 et seq.)). At the deposition, Plummer represented both Union Pacific and Yanez. Yanez claims the alleged dishonesty was a simple miswording in his witness statement that Plummer, during the deposition, manufactured into something sinister for Union Pacific's benefit.

Plummer moved successfully for summary judgment, claiming that Yanez could not meet the causation element of Yanez's three causes of action against him. We reverse, concluding that Yanez has raised a triable issue of material fact that but for Plummer's conduct, Union Pacific would not have fired Yanez.

FACTUAL BACKGROUND

The summary judgment papers contain the following evidence. Because a successful summary judgment motion denies the losing party a trial, the papers of the moving party are strictly construed while those of the losing party are liberally construed. (Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627, 35 Cal.Rptr.2d 238.)

Accident and Witness Statements

On September 6, 2008, Yanez was working with another Union Pacific machinist, Robert Garcia, in replacing locomotive motors. An elevator-like device known as a “drop table” is used to raise the motors from the “drop pit” over which the locomotive is situated; Yanez was operating the drop table when Garcia went into the drop pit to retrieve a tool, fell, and was injured.

As the only percipient witness of Garcia's accident, Yanez wrote two witness statements, one shortly after it occurred (hereafter first statement) and a longer second statement about an hour later (hereafter second statement).

The first statement was requested by Union Pacific day shift supervisor Shawn Orr, and provided: “I Michael Yanez was working on the UP 5566 [locomotive] on drop table # 2 with Boby Garcia, we were going outside to raise # 5 T/M [locomotive motor]. Boby had droped a socket down into pit & said he would go get it while I was raising motor outside I was watching motor come up while Boby went downstairs & went to retrieve tool had sliped & fell on concrete floor, soaked in oil & grease.” (Italics added.)

Leo Marin, second in command at the Union Pacific facility, then told Yanez to write a second statement because the first statement lacked details. The second statement provided: “I Michael Yanez was working on the UP 5566 [locomotive] on drop table # 2 with Boby Garcia. We were going up with T/M [locomotive motor] outside. Boby had told me he had droped a socket & was going to retrieve it. I was looking down at motor coming up, but I could see Boby going downstairs & he walked out on concrete floor. I saw Boby slip & fall down on oil soaked floor, he was lying on his back when I came downstairs to help him up, he complainde of his knee & back hurt. I called for hellp. James King responded.” (Italics added.)

Yanez's Predeposition Meeting with Plummer

The injured employee, Garcia, sued Union Pacific under the FELA, and deposed Yanez therein. Union Pacific assigned attorney Plummer to defend it against Garcia's FELA lawsuit.

As instructed by Plummer, Yanez met with Plummer on the morning of the day of his deposition, June 17, 2009. Plummer confirmed that Yanez had not “actually seen” Garcia fall down, and asked Yanez about the conditions at Garcia's accident site. Nothing was said regarding the two statements that Yanez had written more than nine months before.

Yanez expressed concern about his job because his deposition testimony was likely to be unfavorable to Union Pacific, and asked Plummer who would “protect” him at the deposition. Plummer responded that Yanez was a Union Pacific employee and Plummer was his attorney for the deposition; as long as Yanez told the truth in the deposition, Yanez's job would not be affected. Plummer never told Yanez about any conflict of interest involving Plummer representing Union Pacific and Yanez at the deposition.

Yanez's Deposition in the Garcia Lawsuit

At the deposition, Garcia's counsel elicited from Yanez that Yanez had not “witness[ed] [Garcia's] accident,” but was aware of it shortly after it happened. Garcia's counsel did not pursue this point any further. But Garcia's counsel had Yanez testify about several conditions at the accident site that could be deemed unsafe.

Plummer then questioned Yanez. After highlighting Union Pacific's “total safety culture” and trying to distance Union Pacific management from allegedly unsafe conditions, Plummer confirmed it was Yanez's “testimony today ... that [he] didn't see [Garcia] slip,” that “[i]t wasn't within [Yanez's] line of sight.” Then Plummer turned to Yanez's written witness statements. Plummer, however, at the deposition, only marked as an exhibit, and emphasized, Yanez's second statement (“ I saw Boby slip & fall down on oil soaked floor” [italics added] ). In passing and without any followup from Plummer, Yanez mentioned he “had worded [his second statement] wrong.”

Union Pacific's Disciplinary Hearing and Termination of Yanez

The director of the Union Pacific locomotive facility, Dennis Magures, attended Yanez's deposition in Garcia's lawsuit as a representative of Union Pacific.

Following Yanez's deposition, Magures obtained a copy of the transcript to confirm that Yanez's deposition testimony—that he did not “witness” or “see” Garcia slip and fall—conflicted with Yanez's second statement that he “saw Boby slip & fall down.”

This confirmation led to a disciplinary hearing against Yanez (also termed a formal investigation) and then to his termination from Union Pacific, in August 2009, for violating company policy against dishonesty.

At the disciplinary hearing, and confirmed in his deposition in Yanez's action here, Magures testified that the dishonesty charge against Yanez was based on the contradiction between Yanez's second statement “and the deposition that [Yanez] gave under oath to attorneys” and that the deposition “triggered the charges brought before [Yanez].”

Yanez, at the disciplinary hearing, read a “closing statement” explaining his second statement. Yanez wrote the second statement “in the haste of the moment”; that instead of stating “I saw Bobby slip and fall down on oil soaked floor,” the statement should have read (in line with Yanez's first statement), “I saw that Bobby had slipped and fell down on oil soaked floor.” ¹ (Italics added.)

DISCUSSION

I. Legal Principles—Summary Judgment Review and Causation

A. Summary Judgment Review

The aim of the summary judgment procedure is to determine, through the use of declarations and evidence disclosed in discovery, whether the parties possess conflicting evidence on a material issue that requires a trial to sort out—in short, whether a triable issue of material fact exists. (Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 988, 245 Cal.Rptr. 463.)

Summary judgment is properly granted to a defendant who shows that an element of the plaintiff's cause of action cannot be established, unless the plaintiff sets forth specific facts showing a triable issue of material fact as to that element (here, the element at issue is causation). (Code Civ. Proc., § 437c, subds. (o)(1), (p)(2); Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 735, 60 Cal.Rptr.2d 710.)

We review independently from the trial court the summary judgment papers. We do not resolve factual issues but ascertain whether there are any to resolve. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 474–475, 4 Cal.Rptr.2d 522.)

B. Causation

Yanez and Plummer agree the fundamental issue on appeal is whether there exists a triable issue of material fact that Plummer caused Yanez to be terminated from Union Pacific.

This question of causation applies to Yanez's cause of action against Plummer for legal malpractice, as well as Yanez's independent causes of action against Plummer for breach of fiduciary duty and fraud. (See Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086, 41 Cal.Rptr.2d 768 [breach of fiduciary duty is a tort distinct from legal malpractice]; Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562, 29 Cal.Rptr.2d 463 [in addition to legal malpractice, civil actions against an attorney may include intentional fraud or constructive fraud (based on breach of fiduciary duty) ]; see also Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2013) ¶¶ 6:425 to 6:426, pp. 6–92 to 6–93 (rev.# 1, 2012) (Vapnek).)

Yanez alleges essentially that the conduct of attorney Plummer and facility director Magures combined to cause his harm—his termination.

In a legal malpractice action where, as here, there is a combination of causes, none of which is sufficient without the others to have caused the harm, the test for causation is the “but for” test: but for the defendant's conduct, the harm would not have occurred. (Viner v. Sweet (2003) 30...