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Bermudez v. Edco Plastics

Court of Appeals of California, Fourth District, Division Three.
Nov 12, 2003
G030818 (Cal. Ct. App. Nov. 12, 2003)

Opinion

G030818.

11-12-2003

MARIA BERMUDEZ, Plaintiff and Appellant, v. EDCO PLASTICS, INC., Defendant and Respondent.

Law Offices of Tory M. Pankopf and Tory M. Pankopf; Robert J. Wheeler for Plaintiff and Appellant. Chapman, Glucksman & Dean, Craig A. Roeb and Jon A. Turigliatto for Defendant and Respondent.


Maria Bermudez sued her employer, Edco Plastics, Inc. (Edco) after suffering a severe injury operating a machine at work. She contended that because the machine was a "power press" within the meaning of Labor Code section 4558, the exclusive remedy of workers compensation did not apply. (Unless otherwise noted, subsequent statutory references are to the Labor Code.) The trial court granted summary judgment for Edco, finding that the machine did not meet the statutory requirements of a power press. We disagree and find there are triable issues of material fact regarding whether the machine was a power press, and therefore reverse and remand for further proceedings.

I

FACTS

On March 24, 1999, Bermudez was employed by Edco. While operating a machine, she was severely injured, suffering permanent injuries to her right hand, including the amputation of one finger and the partial amputation of another. After surgery, she reported pain in her wrist and hand, weakness, numbness and stiffness in her fingers, and depression as a result of her injuries.

The machine Bermudez was operating at the time of the accident was a stamping press. At the time of the accident, the machine was being used to apply color to license plate frames. The stamping press operated by using heat, pressure and time to apply color to the frame. A lower die held the frame in place while an upper die pressed colored film to the frame to transfer the color and impart the new finish. According to Bermudezs expert, "[t]he hot stamping process uses heat and high pressure to reform the workpiece surface and to simultaneously transfer and bond the colored pigment from a carrier film to the workpiece surface."

On March 24, 2000, Bermudez filed a lawsuit against the manufacturers and installers of the machine, Franklin Manufacturing Company, Kensol-Franklin, Kensol-Olsenmark, Inc. and Fabco Air, Inc. The complaint alleged strict liability, negligence, and breach of warranty. In June 2001, Bermudez filed a stipulation to amend her complaint to name Edco in place of Doe 101. In October 2001, she sought and received leave to file an amended complaint, alleging the machine that caused her injury was a power press within the definition of section 4558. Edco unsuccessfully challenged the pleadings and its joinder via the Doe amendment procedure.

Edco subsequently filed a motion for summary judgment, advancing two arguments: First, that the subject machine was not a power press as defined by the Labor Code, and second, that Bermudezs claim was barred by the statute of limitations. The court accepted the first argument and rejected the second, and granted Edcos motion on the ground that the machine was not a power press.

After Edcos motion was granted, Bermudez settled her claims against the remaining defendants, Franklin Manufacturing Company, Kensol-Franklin, Kensol-Olsenmark, Inc. and Fabco Air, Inc. Bermudez now appeals the judgment in Edcos favor.

II

DISCUSSION

Standard of Review

This court reviews de novo the trial courts decision to grant summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.)

"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850.)

We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) All doubts as to whether any material issues of fact exist are resolved in favor of the party opposing summary judgment. (Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632, 642.)

The Power Press Exception to Workers Compensation Exclusivity

Before proceeding further, we must define the issues as framed by the pleadings. (See, e.g., AARTS Productions v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) In her amended complaint, Bermudez alleged that her injury fell outside the exclusivity provisions of the workers compensation laws because the machine she operated was a power press within the definition of section 4558. She further alleged that Edco had failed to install a point of operation guard on the machine. Bermudez does not advance any other argument as to why her injury would not fall within the exclusivity provisions of the workers compensation laws. Thus, the issue as framed by the pleadings is whether the machine that caused Bermudezs injury is indeed a power press within the scope of section 4558.

Next we determine whether Edco has established a prima facie showing that the machine is not, in fact, a power press. We begin by reviewing the statutory context in which this case arises. An employees right to recover against the employer is usually limited to remedies set forth in the Workers Compensation Act (WCA). (§ 3201 et seq.) The workers compensation system is sometimes known as the "compensation bargain." (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) Pursuant to this bargain, "the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort." (Ibid.)

Section 4558, the power press exception, is one of the few exceptions to the general rule of workers compensation exclusivity. Section 4558, subdivision (b) provides, in pertinent part: "An employee . . . may bring an action at law for damages against the employer where the employees injury . . . is proximately caused by the employers knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death."

Section 4558, subdivision (a)(4), defines a power press as "any material-forming machine that utilizes a die which is designed for use in the manufacture of other products." This statutory definition embraces four elements. "The power press itself is a machine. It is a machine that forms materials. The formation of materials is effectuated with a die. Finally, the materials being formed with the die are being formed in the manufacture of other products." (Ceja v. J.R. Wood, Inc. (1987) 196 Cal.App.3d 1372, 1376.) The California Supreme Court has defined a "die" as "a tool that imparts shape to material by pressing or impacting against or through the material, that is, by punching, stamping or extruding. . . ." (Rosales v. Depuy Ace Medical Co. (2000) 22 Cal.4th 279, 285.) In addition to the text of the statute and the relatively few cases interpreting it, we have also reviewed the legislative history, which, sadly, provides no meaningful insight regarding the definition of a power press.

Edco contends the stamping machine is not a power press because it did not form or impart shape to the license plate frames, or form materials in the manufacture of other products. In its motion for summary judgment, Edco introduced the declaration of Paul Youngdahl, a Ph.D. in mechanical engineering with 60 years of professional experience. Youngdahls declaration states the purpose of the stamping press is "to transfer a color from film to a product. The machine uses heat, pressure and time to apply the color to the product . . . . The machine uses a type of "die". The lower "die" simply holds a previously manufactured and formed article in place. The upper "die" is hot and presses the colored film to the product to transfer the coating to the product. [¶] At the time of the subject incident, the subject machine was being used to color license plate frames. The product, license plate frames, had been previously manufactured and formed by other machines and processes. The subject machine was used solely to apply color to the previously manufactured license plate frames."

This declaration sufficiently established a prima facie case that the stamping press did not form or impart shape, and was not being used to form materials in the manufacture of other products. (See, e.g., Ceja v. J.R. Wood, Inc., supra, 196 Cal.App.3d at p. 1376.) Thus, we must determine whether Bermudezs opposition raised a triable issue of material fact as to whether the machine was a power press. Specifically, we consider whether Bermudezs opposition to the motion introduced any evidence that the machine formed materials or that the materials formed with the stamping press were used in the manufacture of other products.

Bermudez argues the declaration of her expert, Richard Chandler, sufficiently raised a triable issue of material fact on this point. Chandlers declaration stated that "the use of the subject machine changed the form of the license plate frame (by melting it, by reshaping it and by injecting color pigment into it) so that a new product was created by the use of the machine itself. A license plate frame, after utilization of the injury-causing machine, constituted a different product than before the machines use on the frame."

Thus, according to Bermudezs expert, the machine did, indeed, form materials in the manufacture of a new product, the colored license plate frame. Keeping in mind that it is not our role to judge the credibility of the experts or whether this argument will ultimately be persuasive to a jury, Bermudez produced sufficient evidence to create a triable issue of fact as to whether the machine is a power press under section 4558. Summary judgment, therefore, was not appropriate.

Statute of Limitations

In addition to arguing that summary judgment should be granted because the machine was not a power press, Edco also argued that Bermudezs claims were time barred under Code of Civil Procedure sections 340 and 474. The trial court rejected this argument. Although Code of Civil Procedure section 437c (m)(2) prohibits us from affirming on appeal on this ground on the present record, we believe denial of the motion is correct even if we considered the issue.

As noted above, Bermudez did not originally name Edco in her lawsuit, but amended her complaint to add the power press theory and to name Edco as a defendant in October 2001, more than a year and a half after filing the action. Bermudez does not contest the notion that a one year statute of limitations applied to her cause of action against Edco at the time her claim accrued. (Former Code Civ. Proc., § 340.) She argues, however, that her amended complaint should relate back to the time of her initial complaint, which was filed within the statute of limitations.

"The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. [Citations.] A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citations.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed. [Citations.]" (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)

Code of Civil Procedure section 474 (section 474) states, in relevant part: "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly." Section 474 is to be construed liberally. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593.)

Edco contends that summary judgment should have been granted because Bermudez could not establish the applicability of section 474. When the issue is ignorance of a claim rather than ignorance of the identity of the defendant, a plaintiff must be ignorant of the facts giving rise to a cause of action in order for section 474 to apply. (General Motors Corp. v. Superior Court, supra, 48 Cal.App.4th at p. 594.) "Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable. The distinction between a suspicion that some cause could exist and a factual basis to believe a cause exists is critical in the operation of section 474." (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363.)

The only evidence offered in the trial court in support of Edcos contention that Bermudez knew of facts giving rise to a cause of action is an allegation in Bermudezs original complaint that the machine was a hot stamping press manufactured by Kensol-Franklin. The fact that Bermudez knew the machine that caused her injury was a hot stamping press does not automatically mean she also knew or believed the machine was a power press under the Labor Code, and Edco offers no argument to support this leap of logic. There is no indication that a reasonable person would have known liability was probable simply because the machine could be identified as a stamping press. Thus, Edco did not establish it was entitled to judgment as a matter of law on this point, and the trial court correctly denied summary judgment.

III

DISPOSITION

The judgment is reversed and the matter remanded for further proceedings. Bermudez is entitled to her costs on appeal.

WE CONCUR: FYBEL, J. and IKOLA, J.


Summaries of

Bermudez v. Edco Plastics

Court of Appeals of California, Fourth District, Division Three.
Nov 12, 2003
G030818 (Cal. Ct. App. Nov. 12, 2003)
Case details for

Bermudez v. Edco Plastics

Case Details

Full title:MARIA BERMUDEZ, Plaintiff and Appellant, v. EDCO PLASTICS, INC., Defendant…

Court:Court of Appeals of California, Fourth District, Division Three.

Date published: Nov 12, 2003

Citations

G030818 (Cal. Ct. App. Nov. 12, 2003)