Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CC05378, Robert J. Moss, Judge.
Pierce & Weiss, David H. Pierce and Eric A. Forstrom for Plaintiff and Appellant.
Friedenthal, Heffernan & Klein, Daniel R. Friedenthal and Jay D. Brown for Defendants and Respondents.
OPINION
FYBEL, J.
INTRODUCTION
Plaintiff Elias Nunez suffered serious injuries while operating a power press in the course and scope of his employment with defendant Commercial Metal Forming (CMF). Nunez filed a complaint against CMF, Orange County Metal Works, Inc., and others, alleging claims for products liability, negligence, negligence per se, and violation of Labor Code section 4558. (All further statutory references are to the Labor Code unless otherwise specified.) Section 4558 permits an employee to sue an employer, notwithstanding the exclusivity of the workers’ compensation law (§ 3600 et seq.), in the event the employee is injured as a result of the employer’s willful removal of or failure to install appropriate point of operation guards on certain power tools. (Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th 1019, 1029 (Flowmaster).)
The record shows CMF is a “dba” for Steel Forming, Inc.
Following Nunez’s counsel’s opening statement to the jury, the trial court granted CMF’s and Orange County Metal Works’s (collectively, defendants) motion for nonsuit as to Nunez’s claims for products liability, negligence, and negligence per se on the ground those claims were barred by the exclusive remedy provisions of the workers’ compensation law; the trial court denied, without prejudice, defendants’ motion as to Nunez’s section 4558 claim. After Nunez rested his case-in-chief on his section 4558 claim, the trial court granted CMF’s motion for nonsuit on the ground Nunez failed to establish a prima facie case for violation of section 4558. The only issue raised on appeal is the court’s ruling on the section 4558 claim.
We affirm. After reviewing the record in the light most favorable to Nunez, we conclude Nunez’s evidence was insufficient to permit a jury to find in his favor on the section 4558 claim. Nunez failed to establish CMF removed or failed to install a point of operation guard on the power press, which had been required or provided by the manufacturer of the press. The trial court, therefore, did not err by granting defendants’ motion for nonsuit as to that claim.
The facts in this section are based on the parties’ stipulated facts and trial testimony.
On April 21, 2003, Nunez was operating hydraulic press number 10 (the press) in the course and scope of his employment for CMF, when he was severely injured. At the time of the accident, Nunez was operating the press to create a small batch of parts. He had activated the press in manual mode by pressing the dual palm buttons until the press cycled upward. Once the press reached the top of its cycle, Nunez put the press on “automatic,” and thus did not need to continue to press the dual palm buttons. Nunez left the controls and went around to the back of the press to inspect the part that had been formed. The record shows either a limit switch malfunctioned or Nunez failed to properly reset the limit switches before activating the press; whichever the cause, the hold-down system of the press became energized. The press rose too high in the cycle which caused the bolts holding the 700-pound “hold down ring” in the press to shear off. As Nunez was kneeling on his right knee on the ground behind the press, inspecting the part that had been formed, the hold-down ring angled to the rear of the press, fell out of the machine, and struck Nunez’s left foot.
The press had been built no later than 1958. No manufacturer’s tags were on the press. The plant manager of CMF at the time of the accident testified that he had overheard the original owner of CMF tell visitors to the plant that the press was the first one he owned and that “they” had built it.
Ralph Meyers, the production manager for CMF, testified that in 1996, the Occupational Safety and Health Administration (OSHA) investigated the press because it still had manual controls which “allowed the operator to run the press and while the press was running, put his hands in the press at the same time it was running.” Meyers contacted Joseph Bush of Royal Hydraulics to inquire about automating the press and bringing the press up to OSHA standards. Royal Hydraulics is in the business of the manufacture and assembly of hydraulic power units.
Bush testified that Royal Hydraulics was retained by CMF to “move the operator away from the pinch point and to supply industry standard components” in order “to make number 10 a safer press.” Royal Hydraulics collaborated with its electronic control subcontractor and recommended to CMF a two-hand, no tie-down device whereby an operator must place both hands on the dual palm buttons to manually operate the press until it closed, at which time the operator was free to switch the press into automatic mode and release the dual palm buttons. Meyers agreed with Royal Hydraulics’s recommendation.
Royal Hydraulics changed the manual valves so that the press was electronically controlled, and incorporated an electrical control box. Royal Hydraulics also replumbed the press and added a few hydraulic components, and installed the dual palm buttons, limit switches, and a heat exchanger. The parts installed by Royal Hydraulics were “standard in the industry of hydraulics and pneumatics” and it had to use diverse parts to construct the installations it performed on the press. Bush testified he saw no evidence any point of operation guards had been removed from the press in the past. Bush also testified Royal Hydraulics’s work constituted a “mere alteration of the press.” Royal Hydraulics did not make its own hydraulic presses.
Bush testified the basic function or operation of the press was not changed by Royal Hydraulics. Royal Hydraulics had nothing “to do with” stop blocks, positive stops, or tooling, other than “[m]oving the operator away from the pinch point.” Royal Hydraulics did not change the speeds of the press, or increase its capacity or weight.
Bush stated that after Royal Hydraulics had completed its work in 1997, Bush had recommended to Meyers other point of operation guards that could be installed on the press “to add to the safety of the machine,” including a physical barrier guard. Bush never informed Meyers that such additional point of operation guards were essential or required, nor did Royal Hydraulics provide any such guards to CMF with instructions that they must be installed. Bush neither told Meyers that operating the press without these additional guards would be unsafe nor stated he was uncomfortable turning the press back over to CMF without the additional guards. Royal Hydraulics never issued any instructions or manuals, or posted any warning signs on the press after the work on the press was completed. Bush offered to provide these additional safety guards if CMF wished to buy them. CMF did not install the additional point of operation guards recommended by Royal Hydraulics.
Nunez’s accident reconstruction expert opined that the dual palm buttons control should have been designed to require the operator to press both buttons throughout the entire 30- to 40-second cycle of the press, and not permit the operator to switch the operation to a hands-free automatic mode.
PROCEDURAL BACKGROUND
On December 6, 2006, Nunez filed a complaint against CMF, Richard L. Schuetze, Inc., Bolt Electric, Royal Hydraulics, Paul-Monroe, Orange County Metal Works, and ACS Hydraulics, containing claims for products liability, negligence, negligence per se, and violation of section 4558. Nunez pursued his claims against CMF and Orange County Metal Works to trial. The record does not reflect the resolution of Nunez’s claims against the other named defendants, if any. As the issues raised by Nunez in this appeal do not relate to those other defendants, we do not consider them further in this opinion.
The record is unclear as to Orange County Metal Works’s relationship to CMF. At oral argument, defendants’ counsel stated that Orange County Metal Works is CMF’s predecessor in interest.
Nunez’s counsel delivered his opening statement at the beginning of the jury trial, in which he presented, inter alia, two theories of liability under section 4558. First, he asserted Royal Hydraulics (a) was a manufacturer of the press as defined in section 4558 and (b) provided or required additional point of operation guards to be placed on the press that CMF knowingly refused to install. Second, he stated CMF was the manufacturer of the press and was required to install point of operation guards that would have prevented the accident.
Following Nunez’s counsel’s opening statement, defendants filed a motion for nonsuit on the ground that each of Nunez’s causes of action were based on injuries allegedly sustained while working and thus were precluded by the exclusivity provisions of the Workers’ Compensation Act. Defendants further argued section 4558’s “punch press exception” to the workers’ compensation exclusivity provisions did not apply to the case.
The trial court granted defendants’ motion for nonsuit with respect to Nunez’s negligence, negligence per se, and product liability claims. The court denied without prejudice the motion for nonsuit as to Nunez’s section 4558 claim.
After Nunez rested his case-in-chief, defendants moved for nonsuit pursuant to Code of Civil Procedure section 581c, subdivision (a). Nunez filed an objection to the motion.
The trial court granted defendants’ motion on the following grounds: (1) while the evidence showed Royal Hydraulics did some repairs and upgrading to the press in 1997, no substantial evidence was presented showing it was a fabricator or manufacturer within the meaning of section 4558; (2) even if Nunez had produced substantial evidence Royal Hydraulics was a fabricator or manufacturer within the meaning of section 4558, no evidence was presented showing Royal Hydraulics ever provided or required an additional point of operation guard; (3) while there is evidence CMF manufactured the press, “section 4558 is meant to include the myriad apparatus which are available to accomplish the purpose of keeping the hands of workers outside the point of operation”; (4) the evidence showed Nunez was injured when he was struck by a component of the press that fell out and it did not show he put his hands or upper extremities into the point of operation; (5) point of operation guards are not designed to keep a 700-pound component of the press from falling out of the press; and (6) “[t]here’s no evidence at all that any kind of point of operation guard would have been substantial enough to prevent that hold down ring from injuring Mr. Nunez.”
Nunez appealed.
DISCUSSION
I.
Appealability
“[A]n order granting nonsuit is ordinarily an appealable order if it is in writing, signed by the court, and filed in the action. In such a case, it has the legal effect of a judgment.” (Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 448, fn. 1.) Here, Nunez appeals from a written order granting the motion for judgment of nonsuit that was signed by the trial court and filed. The order, therefore, is appealable.
II.
Standard of Review
“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor.”’ [Citation.] A mere ‘scintilla of evidence’ does not create a conflict for the jury’s resolution; ‘there must be substantial evidence to create the necessary conflict.’ [Citation.] [¶] In reviewing a grant of nonsuit, we are ‘guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.’ [Citation.] We will not sustain the judgment ‘“unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.”’ [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) “We may not, however, consider the supporting evidence in isolation, and disregard any contradictory evidence; rather, we must review the entire record.” (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)
We review de novo issues dealing solely with statutory interpretation and application of a statute to undisputed facts. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
III.
Nunez Failed to Produce Evidence Establishing a Prima Facie Case That CMF Violated Section 4558.
A.
Overview of Liability Under Section 4558
Section 3602 provides that the sole and exclusive remedy of an employee, who is injured in the course and scope of employment, against his or her employer is the right to recover workers’ compensation benefits if the conditions of section 3600 are satisfied, unless an exception set forth in section 3602, 3706 or 4558 applies. (Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 352.)
The central liability provision of section 4558 is found in subdivision (b) which 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 cause of action under section 4558 includes the following elements: (a) that the 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 (b) that 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. [Citation.]’” (Flowmaster, supra, 16 Cal.App.4th at pp. 1026-1027.)
Nunez did not produce any evidence CMF removed a point of operation guard on the press. Therefore, in order to establish his section 4558 claim, Nunez was required to prove CMF knowingly failed to install a point of operation guard on the press.
B.
Nunez Did Not Produce Evidence Showing Royal Hydraulics Was a Manufacturer of the Press; Even Assuming Royal Hydraulics Was a Manufacturer of the Press, the Evidence Did Not Show It Required or Provided a Point of Operation Guard.
Under subdivisions (a)(2) and (c) of section 4558, “liability for ‘failure to install’ a point of operation guard under section 4558 must be predicated upon evidence that the ‘manufacturer’ either provided or required such a device, which was not installed by the employer.” (Flowmaster, supra, 16 Cal.App.4th at p. 1027.) Section 4558, subdivision (a)(3) defines “manufacturer” as a “designer, fabricator, or assembler of a power press,” and subdivision (a)(4) defines the term “power press” as “any material-forming machine that utilizes a die which is designed for use in the manufacture of other products.”
Nunez argues he produced substantial evidence which showed that both Royal Hydraulics and CMF fell within the statute’s definition of manufacturer and that CMF failed to install required point of operation guards. We disagree.
With regard to Nunez’s argument he produced evidence Royal Hydraulics was a manufacturer of the press within the meaning of section 4558, Jones v. Keppeler (1991) 228 Cal.App.3d 705, 710 (Jones) is directly on point. In Jones, L & J Press Corporation, the original manufacturer of a power press, sold the power press to a party identified in the opinion as “Rohr.” (Id. at p. 707.) Pursuant to Rohr’s instructions, L & J Press supplied the power press with foot controls and omitted the standard two-hand simultaneous control system. (Id. at p. 708.) The power press did not contain a point of operation guard. (Ibid.)
After using the power press for 20 years, Rohr modified the power press by “removing the original control mechanism” and by “install[ing] a 2-hand control system” manufactured by PSC Corporation. (Jones, supra, 228 Cal.App.3d at p. 708.) PSC mounted signs on the exterior of the power press including a warning that the power press should not be operated with a foot switch without a point of operation guard. (Ibid.) Rohr sold the power press to the plaintiff’s employer. (Ibid.) At the time of the sale, the machine “was equipped with the two-hand control system and the warning signs.” (Ibid.) Rohr also provided the employer with L & J Press’s original service manual indicating that both hand and foot controls were part of the standard design of the power press. (Ibid.) The employer attached a foot press, but did not provide a point of operation guard. (Ibid.)
The plaintiff sued the employer under section 4558 after his hand was injured while operating the power press. (Jones, supra, 228 Cal.App.3d at p. 707.) The plaintiff argued the employer was liable under section 4558 because Rohr and PSC provided for and conveyed information about a point of operation guard. (Jones, supra, 228 Cal.App.3d at p. 708.) The plaintiff further argued that because Rohr and PSC designed and installed a new control mechanism on the power press, they were manufacturers within the meaning of section 4558. (Jones, supra, 228 Cal.App.3d at pp. 708-709.)
The appellate court in Jones began its analysis by reviewing the rules of statutory interpretation, stating: “The basic objective of statutory construction is to ascertain the purpose of the legislation and to effectuate that intent. [Citation.] The starting point for interpreting a statute is the language of the statute itself, giving the words their usual and ordinary meaning. [Citation.] In addition, we must construe legislation ‘in context, keeping in mind the nature and purpose of the statutory act.’ [Citation.] In so doing, we consider matters such as ‘“‘the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’”’” (Jones, supra, 228 Cal.App.3d at p. 709.)
The Jones court explained, “[s]ection 4558 was enacted as part of an extensive overhaul of the workers compensation system designed to address perceived inadequacies in the rules. Employees claimed benefits were too low, while employers and their insurers felt the system was too costly, particularly due to the increasing number of exceptions to the workers’ compensation exclusive remedy rule. The resulting legislation reflected a carefully crafted compromise among employer, employee and insurer groups providing increased benefits for injured workers and their families and the potential for decreased expenses for the employer by strengthening the exclusive remedy rules. In the final legislative package there were only four circumstances under which a worker could bring a civil action against the employer, including the power press exception at issue here.” (Jones, supra, 228 Cal.App.3d at p. 709, fn. omitted.)
The Jones court further stated, “[t]he language of section 4558 reflects the Legislature’s careful drafting of the terms triggering the application of the statute. The code section subjects an employer to liability for ‘failing to install’ a guard, defined as ‘omitting to attach a point of operation guard either provided or required by the manufacturer, when the attachment is required by the manufacturer and made known by him or her to the employer at the time of acquisition, installation, or manufacturer-required modification of the power press.’ (Italics added.) Subdivision (c) reiterates that ‘no liability arises’ unless ‘the manufacturer’ provides for and conveys information about the guard. Subdivision (a)(3) defines a manufacturer as ‘the designer, fabricator, or assembler of a power press.’ Subdivision (a)(4) in turn defines a ‘power press’ as ‘any material-forming machine that utilizes a die which is designed for use in the manufacture of other products.’” (Jones, supra, 228 Cal.App.3d at pp. 709-710.)
The court rejected the plaintiff’s argument that Rohr and PSC were manufacturers within the meaning of section 4558, holding: “Given the statute’s history and language, we reject [the plaintiff]’s contention that we should expansively interpret the term ‘manufacturer’ to include any party that participates at any time in modifying a power press. Under the specific statutory definitions, neither Rohr nor PSC manufactured the power press which injured [the plaintiff]. Rather, PSC designed and installed a new control component to Rohr’s 20-year-old power press. [¶] Likewise contrary to [the plaintiff]’s assertions, the fact that the new component added by PSC was a type of safety device is insufficient to render PSC or Rohr a manufacturer of the power press. Under [the plaintiff]’s proposed construction, any party which repairs, replaces or even slightly modifies a safety feature of a power press would be labeled a manufacturer, including the employer itself. Such broad interpretation would expand section 4558 beyond its intended purpose and would be tantamount to eliminating the ‘manufacturer’ requirement from the statute.” (Jones, supra, 228 Cal.App.3d at p. 710, fn. omitted.)
Here, the evidence shows Royal Hydraulics performed a significant amount of modification work on the press, which included automating the press and making it electronically controlled, adding the dual palm buttons, replumbing the press, and installing hydraulic components, limit switches, and a heat exchanger. Bush provided uncontroverted testimony that Royal Hydraulics, however, did not change the basic function, operation, tooling, speed or capacity of the press. Thus, Nunez failed to provide sufficient evidence showing Royal Hydraulics designed, fabricated or assembled the press itself within the meaning of section 4558.
Even if we were to conclude Nunez has produced substantial evidence establishing Royal Hydraulics was a manufacturer within the meaning of section 4558, Nunez did not produce evidence Royal Hydraulics required or provided a point of operation guard. Although Bush testified that Royal Hydraulics offered recommendations to CMF about other possible point of operation guards that would add to the safety of the press, no evidence was provided showing that at any time did Royal Hydraulics require or provide such a point of operation guard. (§ 4558, subd. (c) [“No liability shall arise under this section absent proof that the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer”].)
Furthermore, Bush testified he never told Meyers that a point of operation guard was essential or required, or that the press would be unsafe without the installation of an additional point of operation guard and no evidence produced at trial showed otherwise. Thus, the trial court did not err by concluding Nunez failed to produce substantial evidence showing CMF failed to install a point of operation guard required or provided by Royal Hydraulics.
C.
Nunez Produced Sufficient Evidence CMF Was a Manufacturer of the Press.
Nunez also argues he produced substantial evidence establishing CMF was the manufacturer of the press. In Flowmaster, supra, 16 Cal.App.4th 1019, 1030, the appellate court held that an employer “is not excluded from the definition of a manufacturer, nor would doing so promote the objectives of the statute. By including section 4558 within the limited list of exceptions to the exclusivity rule, the Legislature has obviously recognized the extreme risk of serious harm to employees inherent in the use of power presses without guards to stop the sequence of operation. The intended protection afforded by section 4558 would seem no less imperative where the employer is itself the manufacturer of a power press. And when an employer has stepped out of the role of merely providing a work place, to become as well the manufacturer of large power tools used in the production process, ‘an “extra” employer status or a relationship’ has been created which ‘involves a different set of obligations,’ potentially rendering the employer subject to liability as ‘any third party tortfestor.’ [Citations.]” (Fn. omitted.)
In Flowmaster, supra, 16 Cal.App.4th 1019, 1031, the court concluded that “in an action against an employer-manufacturer of a power press, for failure to install a guard [citation], the plaintiff must prove that the employer’s own design of the press provided for a guard which was later removed or never installed; or, alternatively, that one was ‘required’ to protect against a known risk of serious injury, but was deliberately omitted by the employer from the design fabrication or assembly of the machine. Under our interpretation of section 4558 an employer may be liable even if the design of the press did not ‘provide’ for attachment of a guard, as long as a guard was ‘required’ to protect against a known risk of serious injury, and the press was capable of functioning with the required guard. The employee is thus protected as intended by section 4558, and the employer-manufacturer is liable only for an affirmative, wilful act of removal or for failure to install the guard.” (Fn. omitted.)
As discussed in our Facts section, ante, Nunez produced some evidence tending to show CMF manufactured the press before 1959. “‘“[I]ndulging every legitimate inference which may be drawn from the evidence in [Nunez’s] favor”’” (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 291), we therefore conclude Nunez produced substantial evidence that CMF was a manufacturer within the meaning of section 4558.
D.
Nunez Did Not Produce Substantial Evidence Showing CMF Was Required to Install a Point of Operation Guard But Deliberately Omitted It From the Design, Fabrication or Assembly of the Press.
As discussed ante, pursuant to Flowmaster, in order to establish liability under section 4558 against CMF as both the manufacturer of the press and Nunez’s employer, Nunez had to prove that either (1) CMF’s own design of the press provided for a point of operation guard which was never installed; or (2) CMF deliberately omitted a required point of operation guard from the design, fabrication or assembly of the press. (Flowmaster, supra, 16 Cal.App.4th at p. 1031.) No evidence of either element was presented at trial.
An employee could also establish liability under section 4558 against an employer-manufacturer if the design of the power press included a point of operation guard that was removed by the employer-manufacturer. As discussed in part III, subpart A, ante, Nunez did not produce evidence CMF ever removed a point of operation guard.
Other than testimony showing the press was likely built in-house sometime before 1959, no evidence was produced at trial regarding CMF’s design, fabrication or assembly of the press, much less whether CMF was required in the process of designing, fabricating or assembling the press to incorporate a point of operation guard but deliberately failed to do so. Neither party has cited any legal authority establishing what point of operation guards were required when the press was designed, fabricated or assembled.
Nunez argues Bush testified he had recommended to Meyers “various point of operation guards that could be installed in Press 10, including screen doors, safety mats, two-hand tie-downs, and light curtains to make the machine ‘OSHA compliant.’” Nunez further argues such point of operation guards would have reduced the risk of injury resulting from what had occurred here—a hold ring shearing off and striking an employee—as had occurred in the past. But section 4558 imposes liability under very limited circumstances—when a point of operation guard was required but omitted.
We thus reject the argument that CMF should be held liable under section 4558 as an employer-manufacturer simply because a different point of operation guard (e.g., a dual palm buttons that required both hands to depress buttons throughout the duration of the press’s cycle) would have made the press safer. Section 4558 requires an employer’s deliberate omission of a required point of operation guard from the design, fabrication or assembly of the press, and does not impose liability because the press might have included another particular guard. While various guards might very well have improved safety in operating the press, Nunez failed to produce evidence or legal authority showing CMF was required to incorporate a point of operation guard when it manufactured the press with the meaning of section 4558, but had failed to do so.
Based on the issues raised on appeal and the record before us, we conclude the trial court did not err by granting defendants’ motion for nonsuit because Nunez has failed to produce evidence and legal authority showing that (1) CMF’s own design of the press provided for a guard which was never installed, or (2) CMF deliberately omitted a required point of operation guard from the design, fabrication or assembly of the press. In light of our holding, we do not need to address Nunez’s arguments regarding the scope of the term “point of operation guard” as used in section 4558, or proximate cause.
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.