Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. BCVBS08535, Kirtland L. Mahlum, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
C. Marshal Friedman, Andrew S. Williams; Robert M. Tessier and Newton G. McCoy for Plaintiff and Appellant.
Sims Law Firm and Selim Mounedji for Defendant and Respondent.
OPINION
McKinster Acting P.J.
Plaintiff Randall Cordova, a carman employed by defendant BNSF Railway Company (hereafter referred to as BNSF), was injured when an angle cock he was repairing flew off the assembly and struck him in the face. On appeal from a summary judgment in favor of BNSF, Cordova contends that he made an adequate showing of the existence of a triable issue of material fact under the relaxed standards which apply under the Federal Employers’ Liability Act (FELA). (45 U.S.C. § 51 et seq.) He also contends that BNSF’s motion addressed only one of the several theories of negligence pleaded in his first amended complaint, and that the court incorrectly found that it was his burden to demonstrate the existence of a triable issue of fact as to the theories which were not challenged in the motion. We agree with Cordova’s latter contention, and we reverse the judgment.
An angle cock, which is part of an air brake system, is a valve at the end of a car which shuts off the flow of pressurized air in the car and in the air hoses between the cars. This allows the hoses to be uncoupled from the next car. The angle cock assembly consists of the angle cock, a threaded pipe called a “nipple,” cock brackets and a U-bolt.
BACKGROUND
Cordova was employed by BNSF as a carman. His job was to make repairs to train cars at BNSF’s Barstow yard. On October 17, 2002, while Cordova was eating lunch, he received a radio call about “an air-related train yard repair” on a “priority” train which was to have departed at 11:00. The dispatcher wanted him to go immediately, but Cordova replied that he was going to finish his lunch. The dispatcher told him that “the yard was piling up” but did not tell him to interrupt his lunch to make the repair. About 15 minutes later, Cordova went to attend to the repair, arriving at the train’s location at approximately 12:20.
When Cordova arrived at the train needing repair, car inspector Frank Soza told him that the angle cock was leaking air. Both Cordova and Soza recognized that “it was a wrong repair.” This phrase is not explained, but we understand it to mean that the angle cock had been improperly installed or incorrectly repaired previously—the angle cock was straight up and the U-bolt was on the threads rather than in the groove where the U-bolt is supposed to fit. Job rules did not require replacement of the entire angle cock assembly if there is an air leak. Cordova thought that the leak could be stopped by tightening the angle cock. Soza had shut off the air to the car. Cordova told Soza to let some air in so he could determine where the leak was. When Soza let some air in, Cordova determined that it was leaking behind the angle cock. Cordova attempted to turn the angle cock with a wrench but could not move it. He loosened the U-bolt a little bit and was then able to turn the angle cock. The leak stopped. He noticed that the air hose support was off the hose, so he bent down to adjust it. As he did so, he yelled to Soza that the leak was fixed and to “open it all the way up.” Soza apparently did so—Cordova could see from how tight the hoses were that there was quite a bit of air going in. At that point, the angle cock blew off and struck Cordova on the head or face. He attempted to complete the repair but he was unable to do so; he was in shock and was mostly “just babbling” while Soza completed the repair. After the repair was completed, Cordova was taken to the hospital, at his request. His vision was “kind of fading in and out” and he was scared. The record does not describe the extent of his injuries.
While Cordova was working on the angle cock, he kept receiving calls about other repairs which he was expected to attend to. However, no one told him that he was taking too long on the angle cock repair. He had never been chastised for taking too long on any repair.
It is a fairly common occurrence that angle cocks have to be replaced, and Cordova had performed about 100 replacements during his career. Cordova and Soza discussed the repair before undertaking it. Neither of them thought there was anything unusual or difficult about the job. Cordova would have asked for help on any job which he did not think he could perform safely.
Cordova filed a complaint and then a first amended complaint. After engaging in discovery, BNSF filed a motion for summary judgment or for summary adjudication. The court granted the motion, and judgment was entered for BNSF. Cordova filed a motion for reconsideration or for new trial, which was denied. Cordova filed a timely notice of appeal.
The first amended complaint alleged, in count I, that Cordova had suffered bodily injuries as a result of BNSF’s negligence. In count II, it alleged a violation of the “Appliance Safety Act and Power as codified in 45 U.S.C. Chapters 1 and 2.” Summary adjudication was granted as to both counts I and II, and judgment was entered for BNSF. Cordova does not assert any error with respect to count II. Accordingly, we will affirm the order for summary adjudication as to count II.
LEGAL ANALYSIS
CORDOVA HAS NOT DEMONSTRATED THE EXISTENCE OF A TRIABLE ISSUE OF MATERIAL FACT AS TO HIS THEORY THAT BNSF IS LIABLE FOR FAILURE TO REPAIR THE ANGLE COCK BEFORE SENDING THE TRAIN TO THE OUTBOUND TRACK. SUMMARY ADJUDICATION WAS NEVERTHELESS IMPROPERLY GRANTED BECAUSE THE MOTION DID NOT ADDRESS CORDOVA’S OTHER THEORIES OF NEGLIGENCE
The first amended complaint alleged that Cordova suffered bodily injuries as a result of BNSF’s negligence, in that BNSF “failed to provide reasonably safe working conditions; reasonably safe methods for work; reasonably safe tools; equipment and appliances for work; and reasonably adequate help and supervision.” In response to BNSF’s interrogatory asking for “all facts that you contend support your claim that defendant . . . is liable to you,” Cordova stated:
“Plaintiff was an employee of Defendant.
“Repairs were not done properly on the locomotive prior to Plaintiff working on it.
“The improper repairs caused Plaintiff’s injury.
“Investigation continues.
“Plaintiff reserves the right to supplement this interrogatory answer.”
BNSF asserts that those facts are insufficient to state a cause of action for negligence because it was Cordova’s responsibility to repair the defective angle cock. It cites authorities (discussed below) which hold that under the FELA, an employer is not liable for injuries to an employee whose job it is to repair the item which allegedly caused the employee’s injury. Cordova contends that BNSF’s failure to repair the angle cock before sending the train to the outbound track, where he was under pressure to perform the repair quickly, would constitute negligence under the FELA, and that he therefore established the existence of triable issues of fact sufficient to withstand summary adjudication.
A defendant moving for summary judgment or adjudication bears the initial burden of production to make a prima facie showing of the nonexistence of a triable issue of material fact as to one or more elements of the plaintiff’s cause of action. If the defendant meets that burden of production, the burden shifts to the plaintiff to produce evidence showing the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The materiality of facts is determined with reference to the issues. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 418-419.) The opposing party’s evidentiary submissions are liberally construed, and all doubts or ambiguities are resolved in the opposing party’s favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We apply the same standards on appeal and determine de novo whether the moving party’s submission is sufficient to shift the burden of production and if so, whether the party opposing the motion has demonstrated a triable issue of material fact. (Deveny v. Entropin, Inc., supra, at pp. 418-419.)
Title 45 United States Code section 51 provides that rail carriers operating in interstate commerce are liable for injuries suffered by their employees which result “in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” The FELA was enacted “because the Congress was dissatisfied with the common-law duty of the master to his servant. [Fn. omitted.] [It] supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.” (Rogers v. Missouri Pac. R.R. Co. (1957) 352 U.S. 500, 507.) “It is well established that the quantum of evidence required to establish liability in an FELA case is much less than in an ordinary negligence action. [Citations.]” (Harbin v. Burlington Northern R. Co. (7th Cir. 1990) 921 F.2d 129, 131.) If the negligence of the employer “played any part, however small, in the injury,” the employer is liable. (Rogers v. Missouri Pac. R.R. Co., supra, 352 U.S. at pp. 507-508, italics added.) Neither assumption of the risk nor the contributory negligence of the employee bars recovery, if the injury was at least in part the result of the employer’s negligence. (45 U.S.C. §§ 53, 54.)
The employee “shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier . . . .” (45 U.S.C. § 54.) “[T]he fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee[.]” (45 U.S.C. § 53.)
The FELA also strongly favors the right of the worker to a jury determination of the worker’s suit. Accordingly, the quantum of evidence necessary to withstand a motion for summary judgment is also much less than in an ordinary negligence action: The reduced quantum of evidence required for a finding of negligence under the FELA “dictates a corresponding ‘slightest’ hurdle for avoiding” summary judgment as well. (Wilson v. Chicago, Milwaukee, St. Paul, & Pac. R. (7th Cir. 1988) 841 F.2d 1347, 1353.) “Under [the FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury . . . .” (Rogers v. Missouri Pac. R.R. Co., supra, 352 U.S at p. 506, italics added.) “It follows that a trial judge must submit an FELA case to the jury when there is even slight evidence of negligence.” (Harbin v. Burlington Northern R. Co., supra, 921 F.2d at p. 131.)
Here, Cordova presented evidence that the railcar should have been inspected and the defect discovered when the car arrived at the Barstow yard. The car belonged to the U.S. Borax Company. BNSF inspects industry-owned railcars when they arrive in its receiving yard. The incoming inspection includes inspection of the brake system. The defective condition of the angle cock assembly was obvious. It was not likely to have been caused when the railcar was connected to the outbound train, and the railcar therefore probably arrived in the inbound yard in that condition and left the inbound yard in that condition. Even if we assume, however, that BNSF had a duty to inspect and to discover the defect while the railcar was in its receiving yard, we are not persuaded that Cordova’s evidence supports the conclusion that BNSF’s failure to discover and repair the defect gives rise to liability under the FELA.
As BNSF points out, an employer is generally not liable under the FELA if an employee whose job it is to inspect or repair defective equipment is injured while doing so. In Wood v. Southern Pacific Co. (1959) 337 P.2d 779, a railroad employee, whose job it was to inspect outbound trains for defects and to repair or report the defects, was injured when his effort to open the stuck lid of a journal box caused him to lose his balance and stumble over a large boulder which the railroad had placed next to the track. (Id. at p. 780.) As Cordova does here, the employee contended that the railroad was liable because the railroad failed to inspect the train and discover the defect before it was sent to an outbound track. (Ibid.) The Oregon Supreme Court held that because the employee also had a duty to inspect for defects and had in fact discovered the defect “in time to avoid the injury,” the railroad’s failure to conduct a prior inspection was not a proximate cause of the employee’s injury, even if it had a duty to conduct a prior inspection. The court held that the railroad could be liable only if it was negligent in some other respect and that negligence was also a proximate cause of the injury. (Id. at pp. 782-783.) The court concluded that the railroad was negligent in failing to remove some large boulders from the area adjacent to the tracks. Because the employee’s injury resulted in part from the fact that he tripped over the boulders while inspecting the defective equipment, the injury resulted in part from the railroad’s negligence. (Id. at p. 783.)
Cordova’s premise is that his injury was caused in part because BNSF, having failed in its duty to discover and repair the defect at the receiving yard, required him to undertake the repair under the greater time pressure which exists in the outbound yard, particularly when an outbound train has already been called for departure. Although he presented some evidence that he was under pressure to hurry, he did not present evidence that his injury was caused, even in part, by his being rushed. Indeed, he presented no evidence that anything he did or failed to do, or that Soza did or failed to do, caused the angle cock to burst off the assembly. On the contrary, his position in the trial court was that the cause of the accident was unknown and that it was BNSF’s burden to show what caused the angle cock to come off the assembly. He surmised a number of possible causes, but presented no evidence in support of any such possible cause.
In any event, because it was Cordova’s job to repair defects in angle cocks and their assemblies, the precise nature of the defect is irrelevant because BNSF is not liable unless there is evidence that Cordova’s injury resulted from some negligence on the part of BNSF apart from any duty to have discovered and repaired the defect before the train was sent to a departure track. (Wood v. Southern Pacific Co., supra, 337 P.2d at pp. 782-783.) Cordova has produced no such evidence. He has therefore failed to demonstrate a triable issue of fact that could support the conclusion that any negligence involving the breach of a duty to discover and repair the defect at the receiving yard was a cause of his injury. Consequently, the court properly granted summary adjudication as to that theory.
That does not, however, resolve the question whether summary judgment was properly granted. Summary adjudication must dispose of an entire cause of action. (Code Civ. Proc., § 437c, subd. (f)(1).) Where a plaintiff has pleaded multiple theories for relief in a single count or has combined multiple separate and distinct wrongful acts in a single cause of action, summary adjudication may be granted as to each allegation “which would have formed a single cause of action if properly pleaded.” (Exxon Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1688, fn. 11; see also Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855; Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1255-1260.) However, summary judgment may not be granted unless the defendant’s motion disposes of all such allegations. It is the moving party’s initial burden to show that the opponent “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940, italics added.) Only if the moving party has met its burden with respect to every theory raised in the pleadings does the burden shift to the opponent. (Ibid.) Otherwise, we must reverse the summary judgment without considering the opponent’s evidence. (Id. at p. 945; accord, Barber v. Chang (2007) 151 Cal.App.4th 1456, 1463.)
Here, count I of Cordova’s first amended complaint alleged several separate theories of negligence in a single paragraph, i.e., that BNSF “failed to provide reasonably safe working conditions; reasonably safe methods for work; reasonably safe tools; equipment and appliances for work; and reasonably adequate help and supervision.” BNSF’s motion addressed only the theory discussed above, i.e., that Cordova’s injuries were caused by improper repairs on the locomotive prior to his working on it. It did not address any of the other theories of liability Cordova alleged. In particular, Cordova contends that BNSF’s motion for summary judgment should have been denied because the motion failed to address his allegation that BNSF negligently failed to “furnish safe methods of work.”
BNSF describes the theory that Cordova asserts was omitted from the summary judgment motion as “fail[ure] to train,” and points out that the complaint did not allege failure to train. BNSF is correct that it had no duty to address any issue not framed by the pleadings. (See Liebert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699.) However, the theory which Cordova argues was omitted from the motion is not failure to train but “failure to provide reasonably safe methods of [or for] work.” As the latter term is used in FELA cases, it does not mean that the employer failed to provided adequate training in what would otherwise have been a safe method of work. Rather, it means that the employer trained or required its workers to employ an unsafe method of work. (See, e.g., Roth v. Atchison, Topeka & Santa Fe Ry. (1995) 912 S.W.2d 583, 589; Keith v. Burlington N. R.R. (1994) 889 S.W.2d 911, 915; Ridings v. Norfolk S. Ry. (1994) 894 S.W.2d 281, 284-285.)
BNSF also contends that its motion was properly granted because it addressed the single theory as to which Cordova stated a factual basis in his original answers to interrogatories, i.e., that prior improper repairs caused his injury. It contends that because Cordova’s answer was devoid of any facts to support liability based on failure to provide safe methods of work, the burden necessarily shifted to Cordova to show that he had evidence to support that theory. This ignores the fact that BNSF’s motion did not assert that Cordova had no evidence to support that theory. A defendant moving for summary judgment or adjudication has the initial burden “to define the issues presented by the complaint and to challenge them factually.” (Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 638.) The moving defendant must “affirmatively react to each theory” alleged in the complaint. (Id. at p. 639.) Otherwise, “that portion of the complaint [is] unchallenged.” (Ibid.; accord, Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114-1115.) To meet this initial burden, the defendant’s moving papers must “set forth with specificity (1) the issues tendered by the complaint or answer which are pertinent to the summary judgment motion and (2) each of the grounds of law upon which the moving party is relying in asserting that the action has no merit or there is no defense to the action.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.)
The allegations of the first amended complaint make it clear that Cordova was relying on failure to provide safe methods of work. Accordingly, BNSF was required to challenge that allegation in its motion in order to shift the burden to Cordova to produce evidence in support of that theory. (Juge v. County of Sacramento, supra, 12 Cal.App.4th at p. 67.) If BNSF had challenged that theory as factually unsupported by Cordova’s answers to interrogatories, the burden might have shifted to Cordova. (See, e.g., Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439-1441 [factually devoid discovery responses may support inference that plaintiff has no evidence to support claim and cannot reasonably expect to obtain any, and may thus shift burden on summary judgment to plaintiff].) BNSF did not challenge the complaint on that theory, however.
In his written opposition, Cordova did not mention that he was relying on that theory. In response to the court’s tentative ruling, indicating that it would grant summary adjudication “as to count [I]” without differentiating among the different theories of negligence alleged in that count, Cordova did inform the court that he had provided BNSF with supplemental answers to the special interrogatories which “included numerous other allegations of fault against the [r]ailroad.” He stated that he had taken the depositions of two railroad supervisors which included information on “the type of training they provided or lack of training they provided.” He contended that he had not yet had “a single opportunity to file anything in this court on those issues” because “negligent improper training” was not a part of BNSF’s motion for summary judgment.
The burden of producing evidence shifts to the opponent only if the moving party has met its burden with respect to every theory raised in the pleadings. (Hawkins v. Wilton, supra, 144 Cal.App.4th at pp. 939-940.) If the moving party has not met that burden as to any theory, we must reverse the summary judgment without considering the opponent’s evidence on the unchallenged theory. (Id. at p. 945; accord, Barber v. Chang, supra, 151 Cal.App.4th at p. 1463.) Because BNSF’s motion did not challenge any theory other than the one discussed above—i.e., that BNSF had a duty to repair the defect before sending the train to an outbound track—the burden did not shift to Cordova to produce evidence in support of any other theory alleged in his complaint, including failure to provide safe methods of work.
At oral argument, BNSF asserted that the gravamen of an action under the FELA is simply whether the employer was negligent, and that the action cannot be separated into different theories for relief. It cited Union Pacific R. Co. v. Hadley (1918) 246 U.S. 330 as its authority. Hadley does not so hold. Rather, the court held that although the defendant sought to “split up the charge into items mentioned in the declaration as constituent elements and to ask a ruling [by the jury] as to each,” the trial court was justified in having the jury determine whether the defendant’s conduct as a whole constituted negligence, rather than determining whether each discrete act was negligent. The “constituent elements” to which the court referred were not distinct theories of liability, as in this case, but rather the acts which the plaintiff’s survivors alleged had led to the collision which caused the plaintiff’s death. (Id. at pp. 332-333.)
Finally, BNSF contends that if it was required to “negate a theory not advanced by Cordova,” it did so by means of evidence it provided which showed that Cordova was experienced in working on angle cocks and was aware of the safety rules pertaining to pressurized equipment. As noted above, the issue is not whether Cordova received inadequate training in a proper method of work but whether he was trained to use an unsafe method. (See Roth v. Atchison, Topeka & Santa Fe Ry., supra, 912 S.W.2d at p. 589.) The evidence to which BNSF refers does not address that theory of liability. Consequently, its factual showing did not shift the burden to Cordova to demonstrate the existence of a triable issue of fact on his theory of failure to provide safe methods of work.
Because we are reversing the judgment as to all theories of liability asserted in the first amended complaint except the theory that BNSF was negligent for failing to repair the defect before sending the train to the outbound track, we need not address Cordova’s contention that his motion for reconsideration should have been granted.
DISPOSITION
The order granting summary adjudication as to count II is affirmed, as is the order granting summary adjudication with respect to the theory that BNSF was negligent for failing to repair the angle cock before sending the railcar to the outbound track, as pleaded in count I. The judgment in favor of BNSF Railway Company is reversed, and the cause is remanded for further proceedings on the remaining allegations of count I of the first amended complaint. Cordova is awarded costs on appeal.
We concur: Richli J., Gaut J.