Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. LC073672, Bert Glennon, Judge.
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. 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. 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.
Appellant’s complaint included a cause of action for products liability against the manufacturer of the equipment, whom appellant voluntarily dismissed before respondents filed their answer.
All further references to section 4558 are to the Labor Code. Section 4558, subdivision (b) provides: “An employee, or his or her dependents in the event of the employee’s death, may bring an action at law for damages against the employer where the employee’s injury or death is proximately caused by the employer’s 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.” A power press is defined in subdivision (a)(4) as “any material-forming machine that utilizes a die which is designed for use in the manufacture of other products.”
All proceedings for the recovery of worker’s compensation, or concerning any right or liability arising out of employment injuries must be instituted before the Worker’s Compensation Appeals Board (WCAB) and not elsewhere, except as otherwise provided by the Worker’s Compensation Act. (Lab. Code, § 5300.)
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. 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.
All further references to section 437c are to Code of Civil Procedure section 437c.
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. The court overruled appellant’s objection to the order of dismissal, and appellant timely filed a notice of appeal September 18, 2006.
“Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence . . . which indicates that no triable issue exists. . . .” (§ 437c, subd. (g).)
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.)
Respondents suggest that Islas was wrongly decided, because in an earlier decision, the California Supreme Court found, as a matter of law, that a particular cutting tool was not a power press. (E.g., Rosales v. Depuy Ace Medical Co. (2000) 22 Cal.4th 279, 285 (Rosales).) In Rosales, however, the issue had been presented to the trial court in a motion for summary judgment. (See id. at p. 281.) Rosales did not hold that where material facts are in dispute, the court is authorized to resolve the issue.
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’ manner of proceeding. He brought an ex parte application to strike the motion to dismiss, or to remove it from the court’s calendar, in order to permit discovery to go forward and to permit appellant to retain an expert. Only when his application was denied did he agree to a hearing on shortened time. His opposition to respondents’ motion to dismiss characterized the motion as one seeking to “short-cut the summary judgment process.” At the hearing on respondents’ motion, appellant repeatedly renewed his objection, insisting that he had been “deprived of an opportunity to fully develop all the evidence in the case.”
Respondents suggest the issue could not await a motion for summary judgment, because the court had no jurisdiction to proceed, and thus was required to resolve the “threshold” issue of its jurisdiction before entertaining any further proceedings. We disagree. Where the personal injury is one which would give rise to a common law cause of action for damages before the enactment of worker’s compensation law, trial courts have “subject matter jurisdiction over such an action unless and until it [is] properly demonstrated that the case [is] one ‘covered by the statute’ due to the presence therein of the conditions of compensation set forth in section 3600 of the Labor Code.” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 98 (Doney); see also Popejoy v. Hannon (1951) 37 Cal.2d 159, 173-174.)
Here, appellant’s complaint alleges he was injured due to respondents’ negligence in removing or failing to install a point of operation guard, knowing that the act or omission created a serious risk of injury to users of the machine. Thus, the complaint has alleged what would be a common law cause of action for negligence, if not preempted by the worker’s compensation statute. The trial court therefore had subject matter jurisdiction until shown otherwise. (Doney, supra, 23 Cal.3d at pp. 98-99; Popejoy v. Hannon, supra, 37 Cal.2d at pp. 173-174.)
As they did in the trial court, respondents cite Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407 (Great Western), as approving motions to dismiss for lack of subject matter jurisdiction, and the resolution of the factual conflicts raised by the motion and opposition. Respondents persuaded the trial court that Great Western required the earliest possible resolution of subject matter jurisdiction because the court had no power to proceed otherwise. Respondents make the same argument here, based on the following language from Great Western: “Moreover, if subject matter jurisdiction may be challenged at any time during the course of an action it is logical for the court to consider all admissible evidence then before it in making its determination -- whatever the procedural posture of the case. Permitting as thorough a review by the court considering the challenge is in accord with the principle a court’s subject matter jurisdiction is so fundamental it may be attacked at any time.” (Id. at p. 1418.)
We have no quarrel with the rule that subject matter jurisdiction may be raised at any time, even on appeal. “A challenge to the subject matter jurisdiction of a court is properly brought by demurrer to the complaint [citations]. It may also be raised by a motion to strike [citations]; motion for judgment on the pleadings [citation]; motion for summary judgment [citations]; or in an answer [citation].” (Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036 (Greener) [motion to quash improper].) When worker’s compensation exclusivity has been shown at trial, subject matter jurisdiction may be raised by a motion for nonsuit. (See Doney, supra, 23 Cal.3d at pp. 97-98; Coleman v. Silverberg Plumbing Co. (1968) 263 Cal.App.2d 74, 79-81.) However, apart from the general rule that subject matter jurisdiction may be raised at any time, Great Western has no application here. In that case, the sovereign immunity of an Indian tribe was raised by a motion for judgment on the pleadings, supplemented by extrinsic evidence. The appellate court approved of that procedure to test subject matter jurisdiction, because Indian tribes are not simply immune from liability, but immune from suit. (Great Western, supra, 74 Cal.App.4th at pp. 1416-1417.) As one appellate court explained: “‘Tribal sovereign immunity would be rendered meaningless if a suit against a tribe asserting its immunity were allowed to proceed to trial. [Citation.]’” (Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1189.)
We have found no authority extending the rule of Great Western beyond the issue of tribal sovereign immunity. Indeed, in Great Western, the appellate court distinguished the motion before it from one disapproved in the worker’s compensation context, by pointing out that defendant WCAB was not immune from suit, as the tribe was. (See Great Western, supra, 74 Cal.App.4th at p. 1416, citing Greener, supra, 6 Cal.4th at pp. 1042-1044.) Here, respondents do not claim to be entitled to sovereign immunity, and they are not presumptively immune from suit in California trial courts. (See Doney, supra,23 Cal.3d at p. 98; Popejoy v. Hannon, supra, 37 Cal.2d at pp. 173-174.)
As the Great Western court noted, “‘Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. United States [(1919)] 248 U.S. 354, 358.’” (Great Western, supra, 74 Cal.App.4th at p. 1419.) Absent congressional authorization, “‘the “Indian Nations are exempt from suit.” United States v. United States Fidelity & Guaranty Co. [(1940) 309 U.S. 506,] 512.’” (Ibid.)
The court in Great Western also appeared to cite Greener as supporting its opinion, claiming the court in Greener held that dismissal was proper because any judgment in the case would have violated the law. (Great Western, supra, 74 Cal.App.4th at p. 1416.) However, the ruling in Greener was based upon the pleadings and the court’s construction of relevant statutes, not upon a resolution of factual issues raised by extrinsic evidence. (See Greener, supra, 6 Cal.4th at pp. 1044-1046.)
Moreover, although the court in Great Western considered extrinsic evidence, that evidence was undisputed. The plaintiff’s argument that the tribe had waived any claim of sovereign immunity was predicated on an agreement to arbitrate or consent to suit under certain conditions; the court noted the plaintiff had neither alleged in the complaint that those conditions had been met nor contended it could amend the complaint to so allege. (Great Western, supra, 74 Cal.App.4th at p. 1420.)
Respondents contend that requiring a jury to find the facts underlying subject matter jurisdiction would defeat the purpose of worker’s compensation exclusivity to afford a “‘quick determination of [workers’] claims for injury without regard to the common law questions of liability, negligence or fault on the part of and other common law defenses available to the employer.’” (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1151.) Respondents have put the cart before the horse. Before respondents may invoke the benefits of worker’s compensation exclusivity, they must be entitled to its protection. If that entitlement had appeared on the face of the complaint, a demurrer or motion for judgment on the pleadings would have afforded them a quick determination of the issue. A motion for summary judgment is another vehicle that provides a pretrial determination of the issue. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 313, 316 (San Diego Watercrafts).) We do not hold that summary judgment is the only procedure the trial court might have followed in order to preserve appellant’s due process rights, but the very purpose of the procedures set forth in section 437c is to preserve the opposing party’s right to due process. (San Diego Watercrafts, supra, 102 Cal.App.4th at pp. 313, 316.)
We have not undertaken to determine all possible procedural vehicles to determine whether a machine is a power press, as we need not do so in order to resolve the issues in this appeal. However, we note that when trial courts have made such a determination prior to trial, they have usually done so pursuant to summary judgment motions. (See, e.g., Rosales, supra, 22 Cal.4th 279 [summary judgment]; Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780 [same]; McCoy v. Zahniser Graphics, Inc. (1995) 39 Cal.App.4th 107 [same]; Bryer v. Santa Cruz Pasta Factory (1995) 38 Cal.App.4th 1711 [same]; Graham v. Hopkins (1993) 13 Cal.App.4th 1483 [same]; Flowmaster, Inc. v. Superior Court (1992) 16 Cal.App.4th 1019 [same]; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505 [same].) A few were resolved by demurrer. (See, e.g., Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128 [demurrer]; Watters Associates v. Superior Court (1991) 227 Cal.App.3d 1341 [same]; Ceja v. J. R. Wood, Inc. (1987) 196 Cal.App.3d 1372 [same].)
Respondents suggest we may resolve the issue as a matter of law, based upon appellant’s own evidence, using the definition of “die” provided by the California Supreme Court in Rosales, supra,22 Cal.4th at pages 285-286. In Rosales, the court concluded the term “die” did not “refer to a tool that imparts shape by cutting along the material in the manner of a blade.” (Id. at p. 285.) Respondents assert that if the machine in this case operated as appellant claimed, it formed material by shaving or planing. Accordingly, respondent argues, appellant’s own evidence presented a factual scenario nearly identical to that in Rosales, allowing the court to resolve the issue as a matter of law. However, in Rosales, it was undisputed that the particular tool at issue formed the material by cutting along its surface; thus, the court concluded as a matter of law that the tool was not a die. (Ibid.) Here, appellant submitted an expert’s declaration asserting that a ram punched through the tube in the manner of a power press, forcing it into a uniform interior shape, contradicting the statement of respondents’ expert that the machine merely measured the inside diameter of the tubes and rejected those not in compliance with a required size.
It is unclear what standard the trial court applied in determining that the machine was not a power press. The court clearly recognized the conflicts in the experts’ declarations, and acknowledged that the issue was presumptively a factual one, but apparently felt compelled to resolve it as a preliminary matter because the issue was jurisdictional. There is no evidence the court applied the standard applicable in a motion for summary judgment, viz., whether there exists a triable issue of material fact. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
Moreover, respondents provided their expert’s declaration and the video disc only with their reply to appellant’s opposition, placing appellant at a material disadvantage. “[D]ue process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. . . .” (San Diego Watercrafts, supra, 102 Cal.App.4th at pp. 313, 316.) Providing an expert opinion for the first time with a reply gives no notice of the issues raised by the expert. (See ibid.) Further, it is unfair to permit one party to force the opposing party to be the first to disclose the identity and opinion of his or her experts. (See Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 296-299 [expert identity privileged until statutory procedure followed]; St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1538-1540 [same].)
Respondents contend appellant’s due process objection was not sufficiently specific to preserve the issue for appeal. We disagree. Appellant repeatedly argued that the trial court’s failure to enforce the requirements of the summary judgment statute denied him due process. The court was sufficiently advised by appellant’s motion to strike, and his repeated objections to the failure to adhere to summary judgment procedures, to allow consideration of appellant’s contention that the procedures adopted by the court deprived him of due process. Respondents suggest these measures were insufficient, because appellant did not object to the admission of the video disc. In fact, appellant observed that the video disc had been provided only with respondents’ reply, and asked for further discovery. In short, appellant made clear from the outset his objections, on due process grounds, to the procedures employed by respondent and to the court’s resolving the issue on an incomplete record.
We do not suggest the question whether a machine is a power press may never be determined by the court as a matter of law prior to trial. (See, e.g., Rosales, supra, 22 Cal.4th 279.) However, because respondents persuaded the trial court that Great Western required it to resolve the issue, and to do so on an incomplete record, the court has not yet had the opportunity to address the issues in the proper context. Appellant must be given adequate notice and an opportunity to prepare his opposition after appropriate discovery.
DISPOSITION
The judgment is reversed and the cause remanded. The trial court is directed to vacate its order granting respondents’ motion to dismiss, and to enter an order denying the motion. Appellant shall have his costs on appeal.
We concur: EPSTEIN, P. J., SUZUKAWA, J.