Santos v. Crenshaw Manufacturing, Inc. CA4/3

Filed 8/28/20 Santos v. Crenshaw Manufacturing, Inc. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MARIVEL SANTOS,
Plaintiff and Appellant, G057371
v. (Super. Ct. No. 30-2017-00948027)
CRENSHAW MANUFACTURING, OPINION
INC.,
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, David R.
Chaffee, Judge. Reversed.
The Holt Law Firm and David C. Holt; The Law Office of J. Felix McNulty
and J. Felix McNulty for Plaintiff and Appellant.
Horvitz & Levy LLP, Karen M. Bray and Shane H. McKenzie; Severson &
Werson, Kenneth C. Ward and Sharon C. Collier for Defendant and Respondent.
INTRODUCTION
1
In 1982, the California Legislature passed Labor Code section 4558 as part
of a sweeping effort to reform the state workers’ compensation system. It codified a so-
called “power press exception” to the principle of workers’ compensation exclusivity,
giving a right of action to employees injured by their employer’s knowing removal of or
failure to install a point of operation guard on a power press when required by the
manufacturer. The California Supreme Court has in the past noted that section 4558 must
be “narrowly construed” in order to give effect to the “carefully crafted compromise
among employer, employee and insurer groups” represented by the legislation passed.
(LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal. 4th 275, 286 (LeFiell).)
That makes sense.
But in this case, we must decide whether the power press exception applies
when the manufacturer, 45 years prior to passage of the law, conveyed a more general
requirement for guards which went completely unheeded by the present user. Under
these unique circumstances, we conclude there are triable issues of material fact as to
whether the employer violated the statute and reverse the trial court’s grant of summary
judgment in the employer’s favor.
FACTS
Appellant Marivel Santos was employed by respondent Crenshaw
Manufacturing, Inc. (Crenshaw) in January 2017 as a machine operator on the production
floor. Santos alleges that sometime in the second week of January 2017, she was
instructed by her supervisor, Jose Flores,2 to operate a material-forming machine utilizing
a die without any protective guards or cages. Ordinarily, Santos would have had to use
1 All further statutory references are to the Labor Code unless otherwise indicated.
2 The record is unclear as to whether Flores’ name is Robert or Jose. Santos refers to him as “Jose”
in her workers’ compensation declaration. But the declaration submitted in support of Crenshaw’s summary
judgment motion identifies Flores as “Robert.” We will refer to him as “Flores” to avoid confusion.
2
both hands to operate the machine. This time, however, Flores instructed her to operate it
“from the side using a bypass button.” Using the machine in this manner allowed Santos
to operate the machine with her right hand, leaving her left hand free to reach into the
machine to “press down the part” being cut. On January 12, 2017, Santos was operating
the machine in this fashion when her left hand was crushed underneath the die, mutilating
and severely injuring it. She filed a workers’ compensation claim against Crenshaw, and
the Occupational Health & Safety Administration (OSHA) investigated.3
Crenshaw’s President, Waleed Mansour, and Flores identified the machine
as an A3 gap frame press, manufactured in or around 1937 by Niagara Machine & Tool
Works (Niagara). Crenshaw purchased two Niagara A3 gap frame presses, along with
other equipment, in late 2013 as part of an asset purchase from another business,
Crenshaw Die & Manufacturing, Inc. (CDM). Mansour states that no one at Crenshaw
has ever spoken to a representative of Niagara, and the only communication Crenshaw
received from Niagara was in the form of the “instructions and parts list” it received from
CDM after purchasing the presses.
It turns out both the instructions and parts list contain information about
safety. The parts list identifies a “two-hand or foot tripping device” included with the
machine. It does not appear to identify any other particular point of operation guard or
protective barrier provided by Niagara with the machine. However, the instructions
contain general warnings about the need for guards. The first warning appears on the
very first page, and states: “IT IS THE EMPLOYER’S RESPONSIBILITY…TO
PROVIDE PROPER DIES, GUARDS, DEVICES OR MEANS THAT MAY BE
NECESSARY OR REQUIRED FOR ANY PARTICULAR USE, OPERATION, SET-
3 Santos argues in her opening brief that Crenshaw disposed of and/or destroyed the press after the
accident, and that Crenshaw cannot meet its initial burden on summary judgment as a result. There is evidence in the
record indicating the press either no longer exists or is no longer in Crenshaw’s possession. Because we reverse the
judgment on different grounds, this issue is unnecessary to our decision, and we need not resolve it. (See Shaw v.
County of Santa Cruz (2008) 170 Cal. App. 4th 229, 259, citing Palermo v. Stockton Theatres, Inc. (1948 ) 32 Cal. 2d
53, 65.)
3
UP OR SERVICE.” The second warning appears on page 11, and states: “DIES
SHOULD BE PROVIDED WITH ADEQUATE GUARDS TO PROTECT
OPERATOR.”4
In addition to the Instruction Manual Warnings, there were at least four
signs visible on the press itself, warning about the dangers of putting hands near the point
of operation of the press. Three of the signs warned about the loss of fingers or hands if
proper precautions, such as guards or “safeguards,” were not used. The fourth sign was
affixed to the front of the press by bolts and states: “WARNING THIS PRESS IS
SUPPLIED WITH A BARRIER GUARD ATTACHED. DO NOT REMOVE GUARD
WHEN OPERATING. THIS IS FOR YOUR SAFETY & PROTECTION. DO NOT
OIL, SET UP, OR CLEAN PRESS WHEN MOTOR IS RUNNING.”5
Santos’ sole cause of action against Crenshaw in the operative version of
the complaint is for violation of section 4558.6 Crenshaw filed a motion for summary
judgment, asserting Santos failed to meet the requirements of the power press exception,
and workers’ compensation was therefore her exclusive remedy.7 Crenshaw argued
Niagara had never designed, provided, installed, or specified any particular guard or
barrier to be used with the machine in any given context. The motion thus hinged on the
information conveyed by the manufacturer to Crenshaw.
To support its argument, Crenshaw submitted, inter alia, declarations from
Mansour, Flores, and its expert, John R. Manning, a mechanical engineer, as well as the
instructions and parts lists Crenshaw received from CDM. Additionally, Mansour
submitted documents he had received pertinent to the OSHA investigation, including a
4 For ease of reference, we refer to these two warnings as the “Instruction Manual Warnings.”
5 We will refer to these four signs collectively as the “Posted Warnings,” and the fourth sign in
particular as the “Fourth Posted Warning.”
6 Her other four causes of action – for negligence, strict liability, breach of warranty, and loss of
consortium – are alleged against Doe defendants.
7 Crenshaw also sought summary adjudication in the alternative as to the punitive damages claim
against it. Since summary judgment was granted, the alternative motion for summary adjudication was rendered
moot.
4
declaration signed by Santos under penalty of perjury, and dozens of photographs of the
press.
Mansour averred in his declaration that the instructions and parts list did
not “reference any required or provided point of operation guards such as the two palm
buttons that were attached to the machines.” Since Crenshaw purchased the equipment,
he stated, no additional point of operation guards had been installed. Flores made similar
averments in his declaration, stating that he had been an employee of CDM prior to being
employed by Crenshaw, and was aware that CDM had installed additional equipment on
its presses. Among these were “light curtains and sensors, fixed and removable barriers,
control boxes and two palm controls. Warning signs and stickers were added . . . at this
time as well.” He further averred that the press in question “did not have these barriers
and two hand controls” before CDM “hired an OSHA compliance company to install
them.” Notably, Flores omitted mention of whether he had asked Santos to operate the
press unguarded.
The most intriguing evidence submitted by Crenshaw is the Manning
declaration. Manning, having reviewed the instructions and parts list, concluded neither
of the Instruction Manual Warnings met the requirements of section 4558 because neither
required use of any point of operation guard “by specification.” Manning based this
opinion on his interpretation of the statutory language. He further opined that any
labeling on the electrical control enclosures was not affixed by Niagara, since the only
electrical part that Niagara had provided on the press was the motor. Finally, Manning
observed, a patent placard bolted onto the press had been affixed by Niagara, while “[a]ll
other labels shown in the various photographs of the . . . press are decals,” thus leading
him to conclude the Posted Warnings were “not put on the machine by Niagara.”
Two days before her opposition was due to be filed, Santos filed an ex parte
application to continue the summary judgment hearing pursuant to Code of Civil
Procedure section 437c(b). She claimed she had been unable to complete depositions of
5
several witnesses. Crenshaw opposed this application, contending plaintiff had failed to
meet her burden to show what evidence she sought, and how it would assist her in
opposing the motion. The trial court denied the continuance.
Santos was thus forced to file her opposition to the summary judgment
motion immediately. In it, she argued Crenshaw had failed to establish that the press had
been modified by CDM. She claimed Niagara had affixed the Posted Warnings and
pointed to the Instruction Manual Warnings as further evidence Niagara required guards
for the press.
In support, plaintiff submitted a declaration from her own expert, William
Phelps, an industrial and mechanical engineer. Phelps agreed with Manning’s opinion
the patent listing placard was affixed by Niagara. He opined that Niagara had affixed the
Fourth Posted Warning because it too had been bolted to the press. Phelps stated that,
when Crenshaw took possession of the press from CDM, the asset description and
valuation sheet showed safety side shields were included. Finally, Phelps stated the
pneumatic two-hand control described in Niagara’s parts list would have been a point of
operation guard because it was designed to keep the operator’s hands outside the point of
operation.
Santos also filed evidentiary objections to several aspects of the Manning
declaration. Principally, she deemed vague, conclusory, speculative, and lacking in
foundation the averment that the Instruction Manual Warnings were not “specific”
enough to meet the requirements of section 4558(c). She also objected on the same basis
to his opinion on the origin of the Posted Warnings. In general, Santos contended the
Manning declaration lacked evidentiary value because it was based on improper matter,
speculation, and conjecture, rather than facts and evidence.
Crenshaw filed a reply brief conceding for purposes of the motion that it
had removed a point of operation guard, but emphasizing the guard was not provided or
required by the manufacturer. It dismissed as “foundationless conjecture” Phelps’
6
conclusion the Fourth Posted Warning had been affixed by Niagara and pointed out that
any currently existing barrier guards were not included in the instruction manual and
parts list.
The trial court granted Crenshaw’s motion in a minute order dated
September 14, 2018, finding Crenshaw had established that the instruction manual was
the only communication to it from Niagara and the manual did not describe, specify, or
include any point of operation guards. The trial court concluded Santos had no evidence
Niagara had affixed the Posted Warnings on the press, finding the Phelps declaration
inadequate. It overruled Santos’ objections to the Manning declaration because they
failed to comply with California Rule of Court, rule 3.1354, subdivision (b).
After the court issued its ruling, Santos filed an ex parte application to
vacate the minute order, arguing the trial court had issued its ruling without having seen
the reporter’s transcript of the summary judgment hearing. The trial court denied the
application and entered judgment. Plaintiff filed an ex parte application to vacate the
minute order, which was also denied.
DISCUSSION
Santos takes issue with two decisions of the trial court. The first, of course,
is its grant of summary judgment against her. The second is the denial of her request for
a continuance of the summary judgment hearing. We address the latter issue first.
A. Denial of Continuance
Santos contends it was error for the trial court to deny the continuance
under Code of Civil Procedure section 437c, subdivision (h) because she had yet to
complete or receive transcripts from depositions of several witnesses, including Mansour,
the OSHA investigator, Jason Brissey, and the person who “supposedly set up the power
press prior to [her] use.” Under Code of Civil Procedure section 437c, subdivision (h),
the court may order a continuance of a summary judgment motion “if it appears from
affidavits submitted” by the opposing party “that facts essential to justify opposition may
7
exist but cannot, for reasons stated, be presented[.]” (Code Civ. Proc., § 437c, subd. (h).)
“A party seeking a continuance under that subdivision must show: ‘“‘(1) the facts to be
obtained are essential to opposing the motion; (2) there is reason to believe such facts
may exist; and (3) the reasons why additional time is needed to obtain these facts.’”’
[Citation.]” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal. App. 4th 1242,
1270.) We review this ruling of the trial court for an abuse of discretion. (Ibid.)
We find none. Santos made no showing that the discovery remaining to be
completed would uncover facts essential to opposing Crenshaw’s motion. The request
for summary judgment was based on the assertion that Niagara had never required or
provided a point of operation guard for the press. Santos never articulated how the
witnesses she sought to depose would help her meaningfully counter that assertion. The
trial court was therefore within its discretion to deny the continuance.
B. Grant of Summary Judgment
The trial court’s grant of summary judgment, however, is subject to de
novo review. (American Internat. Specialty Lines Ins. Co. v. Continental Casualty Ins.
Co. (2006) 142 Cal. App. 4th 1342, 1357.) “‘“A trial court properly grants a motion for
summary judgment only if no issues of triable fact appear and the moving party is
entitled to judgment as a matter of law. [Citations.] The moving party bears the burden
of showing the court that the plaintiff ‘has not established, and cannot reasonably expect
to establish,’” the elements of his or her cause of action. [Citation.]’ [Citation.]” (State
of California v. Allstate Ins. Co. (2009) 45 Cal. 4th 1008, 1017). Thus, we must strictly
construe the evidence offered by the moving party, and liberally construe the evidence
offered by the opposing party, “resolving doubts concerning the evidence in favor of [the
opposing] party.” (Id. at pp. 1017-1018.) Santos’ overarching contention on appeal is
that the trial court did just the opposite – it liberally construed Crenshaw’s evidence, and
resolved doubts concerning the evidence in Crenshaw’s favor. She further contends there
8
were triable issues of material fact as to whether Niagara had required guards on the
press.
1. Labor Code section 4558’s Place in the Workers Compensation
Framework
“The basic theory of workers’ compensation is that where the conditions of
compensation exist, benefits under the workers’ compensation act provide the exclusive
remedy against an employer for injuries sustained in the course of employment . . . .
Section 3602, subdivision (a) provides that the only exceptions to this exclusive remedy
doctrine are those specifically described in section 3602, subdivision (b), section 3706,
and section 4558.” (Award Metals, Inc. v. Superior Court (1991) 228 Cal. App. 3d 1128,
1132.) “Section 4558, subdivision (b), the exception to the exclusive remedy rule
applicable to this case, 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.’”
(Id. at p. 1133.)
“The obvious legislative intent and purpose in section 4558 is to protect
workers from employers who wilfully remove or fail to install appropriate guards on
large power tools. Many of these power tools are run by large mechanical motors or
hydraulically. [Citation.] These sorts of machines are difficult to stop while they are in
their sequence of operation. Without guards, workers are susceptible to extremely
serious injuries. For this reason, the Legislature passed section 4558, subdivision (b),
which subjects employers to legal liability for removing guards from powerful machinery
where the manufacturer has designed the machine to have a protective guard while in
operation.” (Ceja v. J. R. Wood, Inc. (1987) 196 Cal. App. 3d 1372, 1377.)
9
The focus of our inquiry is subdivisions (a)(2), (a)(5), and (c) of section
4558, because these subdivisions address the power press manufacturer’s role in
promoting safe operation of the press. Subdivisions (a)(2) and (a)(5) define a “failure to
install” or “removal” of a point of operation guard. A “‘[f]ailure to install’ means
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.” (§ 4558, subd. (a)(2).) “‘Removal’ means
physical removal of a point of operation guard which is either installed by the
manufacturer or installed by the employer pursuant to the requirements or instructions of
the manufacturer.” (Id. at subd. (a)(5).) Subdivision (c) provides a key principle in
applying the statute: “No liability shall arise under [section 4558] 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. Proof of
conveyance of this information to the employer by the manufacturer may come from any
source.” (Id. at subd. (c).)
Several words are repeated in these three subdivisions, but one that
especially catches the eye is “require.” We must decide what “require,” in its varied
tenses and forms, means within the context of the statute; and more broadly, the type of
information a manufacturer must convey to the employer in order to “require” use of a
guard.
2. Interpreting Section 4558
“‘“In analyzing statutory language, we seek to give meaning to every word
and phrase in the statute to accomplish a result consistent with the legislative purpose
. . . .” [Citations.]’ [Citation.]” (LeFiell, supra, 55 Cal.4th at p. 286.) And even though
narrow construction must be attempted, “[w]e avoid literal, narrow or hypertechnical
meanings of words so as to give effect to the manifest objectives of the legislation which
10
appear from the provisions considered as a whole, in light of legislative history.”
(Bingham v. CTS Corp. (1991) 231 Cal. App. 3d 56, 65 (Bingham).) The existence of the
power press exception reflects the Legislature’s determination that, despite the workers’
compensation bargain, “employees who must use power presses . . . potentially require
additional protection and compensation” when injured. (Flowmaster, Inc. v. Superior
Court (1993) 16 Cal. App. 4th 1019, 1029.)
According to Webster’s Dictionary, the verb “require” has three modern
meanings potentially applicable to our situation: (1) “to ask for authoritatively or
imperatively . . . claim by right and authority . . . [or] insist upon usually with certainty or
urgency”; (2) “to call for as suitable or appropriate in a particular case . . . to demand as
necessary or essential . . . to demand as a necessary help or aid”; (3) “to impose a
compulsion or command upon (as a person) to do something.” (See Webster’s 3d New
Internat. Dict. (1981) p. 1929, col. 2.) This ordinary usage convinces us a manufacturer’s
“requirement” that an employer use a point of operation guard on a power press could
potentially come in mandatory or more urgent suggestive language. But what degree of
specificity must a manufacturer use in “requiring” use of a point of operation guard?
Crenshaw argues that section 4558 requires a manufacturer to convey
specific information – in other words, to identify a particular point of operation guard. In
support of this argument, it points to the Legislature’s choice of words - the words
“known,” “knowing,” and “knowledge” peppered throughout the statute, the phrase
“otherwise provided by specification,” and the definite article “the” in subdivision (c). It
believes only specific information would meet the fundamental goal of giving fair notice
to those bound by the statute. Finally, it claims that case law is “consistent” in holding
that the manufacturer must convey specific guarding requirements.
We do not draw this conclusion from the case law. The closest thing to
such a pronouncement came in Bingham, the case upon which Santos relies. In Bingham,
the manufacturer of a power press brake had provided a safeguarding manual and point of
11
operation selection chart with the machine. The materials specified “particular
safeguarding devices to be used while certain types of work are performed” with the
machine. (Bingham, supra, 231 Cal.App.3d at pp. 66-67.) Not surprisingly, the court
found this “constitute[d] a specification or requirement” under section 4558. (Id. at p.
67.) The Bingham court also observed that “[t]he phrase ‘designed, installed, required, or
otherwise provided by specification’ . . . in section 4558, subdivision (c) is written in the
disjunctive.” (Id. at p. 66.) Therefore, “[i]f any inference can be derived from the
evidence that any of these terms can describe the information conveyed” from the
manufacturer to the employer, the employer could be liable under the power press
exception. (Ibid.)
Such specificity, however, was unique to Bingham. And saying more will
do is not the same as saying less will not. Most of the cases interpreting section 4558 are
less demanding. Crenshaw relies on cases involving little, if any, guidance of any kind
from the manufacturer. In some, the employer defendant had no information at all from
the manufacturer. (See Swanson v. Matthews Products, Inc. (1985) 175 Cal. App. 3d 901,
904 [defendant received the machine “without any instruction materials”]; Bryer v. Santa
Cruz Pasta Factory (1995) 38 Cal. App. 4th 1711, 1713 [owner had “never ‘received
information of any kind’ from the manufacturer” of the machine].) In another, a safety
device was supplied with the machine at the owner’s request, and the manufacturer’s
standard safety device was not used. (See Jones v. Keppeler (1991) 228 Cal. App. 3d 705,
707-708 (Jones) [owner instructed manufacturer to supply machine with foot controls
and omit “standard two-hand simultaneous control system”].) And in yet another, the
instruction materials from the manufacturer “included no reference(s) to the installation
or use of a point of operation guard.” (Aguilera v. Henry Soss & Co. (1996) 42
Cal. App. 4th 1724, 1727.) Given the lack of information from the manufacturer in these
cases, the respective courts found the employer had not omitted or failed to install a
12
manufacturer-specified guard. Here, in contrast, the Niagara press came with
instructions, and those instructions did refer to the need for guards.
Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App. 3d 1505 (Saldana)
provides us with some useful insight. In Saldana, the appellate court upheld the grant of
summary judgment in favor of an employer who had attempted to make a press safer by
replacing a manufacturer-supplied safety device with another safety device. (Id. at p.
1517.) The plaintiff there argued any removal of a manufacturer-supplied device resulted
in liability under section 4558. (Id. at p. 1519.) The court disagreed, arguing that such a
“narrow reading of section 4558, subdivision (b) . . . would lead to absurd results,”
because it would “inhibit employers from correcting dangerous conditions.” (Ibid.)
Implicit in this conclusion was a recognition of two important principles. First, the
statute should not be read to contravene the Legislature’s intentions. Second, the
manufacturer may not always be the final arbiter of what is safe – sometimes, the
employer must be afforded that discretion. And so long as the employer attempts in good
faith to exercise it – for instance, when it attempts to make the machine safer than the
manufacturer intended – it should not face liability.
Ultimately, the case law has only established, through Bingham, that a high
degree of specificity in the manufacturer’s safety directives will suffice under section
4558. But our question is different – what is the lowest degree of specificity that would
suffice?
Crenshaw clearly believes the Legislature’s choice of words is dispositive
on this issue. But we do not share Crenshaw’s certainty. Use of the words “know,”
“known,” or “knowledge” tells us little, if anything. Knowledge can be general or
specific in nature. Crenshaw concedes that it “knew” what was in the instructions and
parts list, and it concedes for purposes of summary judgment that it removed guarding
from the machine.
13
As for the phrase “otherwise provided by specification,” Crenshaw advises
that the maxim of noscitur a sociis permits us to construe ambiguous words in the context
of the immediately surrounding words. (See Gateway Community Charters v. Spiess
(2017) 9 Cal. App. 5th 499, 504.) By this principle, Crenshaw argues, the use of the word
“specification” in section 4558, subdivision (c) means that the preceding words –
“designed, installed, [and] required” – also convey a requirement of a specification.
Again, we are not so sure. “‘“Interpretations that lead to absurd results or render words
surplusage are to be avoided. [Citation.]” [Citation.]’ [Citation.]” (Tuolumne Jobs &
Small Business Alliance v. Superior Court (2014) 59 Cal. 4th 1029, 1037.) If the words
“by specification” qualify all of the preceding words, the words “required” and
“provided” would be redundant, as we are unsure what difference there is between
“requiring by specification” and “providing by specification.” In our view, the word
“specification” refers not to the specificity of the information, but to “a plan or proposal
for something.” (Webster’s 3d New Internat. Dict. (1981) p. 2187, col. 2.) Construing
the term “specification” this way gives the words “required” and “provided” unique
meanings. An employer may require use of a point of operation guard in the instruction
materials, or it may provide a specification for one.
Nor can we agree the use of the definite article “the” is determinative.
“The” is used to describe “guards” in section 4558, subdivision (c) only after the
indefinite article “a” was used before “point of operation guard” in subdivision (b). Thus,
“the guards” simply refers to point of operation guards. In any event, we must not
construe the statute in such a “narrow” and “hypertechnical” way as to obstruct
legislative intent. (See Bingham, supra, 231 Cal.App.3d at p. 65.)
We believe the Legislature’s intent is best effectuated by applying section
4558 in situations where an employer has sufficient information from a manufacturer to
14
know that guards are required and completely disregards that directive.8 Whether the
information is sufficient is a determination to be made case by case, based on the facts of
the case.
3. Application to the Present Facts
Our analysis here focuses on the Posted Warnings and the Instruction
Manual Warnings. We do not address whether the “two-hand or foot tripping device”
identified in the parts list constitutes a point of operation guard required by Niagara, as
Santos recently contended in her supplemental letter brief. To be sure, Santos has
consistently cited the two-hand control as one of two point of operation guards on the
press. However, she did not argue on summary judgment that this two-hand control was a
point of operation guard required by Niagara, as opposed to being added later on the
impetus of a third party. Her argument focused on whether barrier guards were required by
Niagara. We will not address an issue that was not properly raised before, and considered
by, the trial court.
i. The Manning Declaration
It is first necessary to consider the evidentiary value of the Manning
declaration. While Santos objected to the declaration, those objections were overruled
because they failed to comply with the California Rules of Court. “‘“‘Pursuant to the
weight of authority, appellate courts review a trial court’s rulings on evidentiary
objections in summary judgment proceedings for abuse of discretion. [Citations.]’
[Citation.] The party challenging a trial court’s evidentiary ruling has the ‘burden to
establish such an abuse, which we will find only if the trial court’s order exceeds the
bounds of reason. [Citation.]’”’ [Citations.]” (Schmidt v. Citibank, N.A. (2018) 28
8 At oral argument, Crenshaw cited LeFiell and Jones to remind us of our duty to “narrowly
construe” section 4558. We are aware of the exhortation and do not believe our interpretation of the statute runs
afoul of it. Unlike LeFiell, permitting a trial on Santos’ claims would not contravene an express term of the statute.
(See LeFiell, supra, 55 Cal.4th at p. 285.) And unlike the plaintiff in Jones, Santos does not advocate the expansion
of definitions provided in the statute. (See Jones, supra, 228 Cal.App.3d at pp. 709-710.)
15
Cal. App. 5th 1109, 1118.) Here, Santos did not challenge the trial court’s rulings on her
evidentiary objections and our review indicates her objections to the Manning declaration
ran afoul of California Rules of Court, rule 3.1354. Thus, it was not an abuse of
discretion for the trial court to overrule them.
At any rate, “[w]hen a defendant moves for summary judgment, ‘its
declarations and evidence must either establish a complete defense to plaintiff’s action or
demonstrate the absence of an essential element of plaintiff’s case.” (Saldana, supra, 233
Cal.App.3d at pp. 1510-1511.) The Manning declaration did not demonstrate the absence
of a manufacturer requirement for a point of operation guard. It did the opposite,
showing the presence of such evidence – namely, the Instruction Manual Warnings.
Manning dismissed the Instruction Manual Warnings and claimed they
were insufficient to meet the requirements of section 4558. But Manning’s role was to
assist the court in understanding engineering concepts outside the common experience –
not to discern the legal impact of evidence. That role resides with the trial court, and for
the moment, it resides with us.
ii. The Posted Warnings
Before we discuss the Instruction Manual Warnings, however, we first
register our agreement with the trial court that there was no triable issue of material fact
with regard to the Posted Warnings. There was no evidence these warnings came from
Niagara. The Flores declaration established that warning stickers and labels were added
to the press while it was owned by CDM and, based on the location of the first three of
the Posted Warnings, Manning deduced they could not have been affixed by Niagara.
This evidence was sufficient to shift the burden to Santos to demonstrate a triable issue of
material fact as to these warnings.
Santos did not provide evidence in her opposition, aside from speculation,
that the first three Posted Warnings were affixed by Niagara. As for the Fourth Posted
Warning, she reasoned it must have been placed by Niagara because it was affixed to the
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press with bolts, just like Niagara’s patent placard. The trial court correctly rejected this
assertion. The Fourth Posted Warning states that the press is supplied with a barrier
guard attached. Yet, the instructions and parts list, an undisputed source of information
from Niagara, contains no mention of this barrier guard. On appeal, Santos contends the
language and font of the Fourth Posted Warning is similar enough to the first Instruction
Manual Warning to indicate it was the work of Niagara. Similarities may exist, but
Santos does not explain why Niagara would affix a sign requiring use of a guard not
identified in its list.9
iii. The Instruction Manual Warnings
The Instruction Manual Warnings are another matter altogether. Unlike the
Posted Warnings, both parties agree these warnings came from Niagara. Thus, the
questions to be resolved are: (1) whether these warnings conveyed sufficient information
to Crenshaw that guards were required, and (2) if so, whether Crenshaw completely
disregarded the directive. We believe there are triable issues of material fact on both
questions.
Crenshaw protests that this issue was waived by Santos on appeal.
Crenshaw forgets, however, that it is responsible for raising the issue, both here and in
the trial court. Crenshaw discussed – or perhaps more aptly, explained away – the
Instruction Manual Warnings as part of its effort to meet its burden on summary
judgment. It repeated the same discussion here in its responding brief. A party cannot
argue waiver of an issue raised by its own submissions. Crenshaw has argued, and
continues to argue, that the Instruction Manual Warnings are of no legal significance
here. We are free to test that proposition.
9 We make our observations about the Posted Warnings strictly within the context of what occurred
at summary judgment. We do not mean to imply that the Posted Warnings are irrelevant to the case, or that
evidence pertaining to them should be inadmissible at trial. The trial court retains the discretion to determine
whether such evidence should be presented to the trier of fact and for what purpose.
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The second Instruction Manual Warning – “DIES SHOULD BE
PROVIDED WITH ADEQUATE GUARDS TO PROTECT OPERATOR” – can be
reasonably understood to require the use of “adequate guards.” Crenshaw argues this
language leaves it to the employer to determine what guards are “adequate.” So it would
seem. But the record before us indicates that no guards at all were used. We cannot
interpret Niagara’s adjuration to mean “guards” and “no guards” are the same thing.
Interpreting the warning as Crenshaw does is a complete contravention of the
manufacturer’s capitalized warning.
Crenshaw further argues that the general wording of this warning fails to
provide fair notice of what is required of it under section 4558. Not so. Had Crenshaw
used some type of guard, this warning would likely have been insufficient under a narrow
construction of the statute. But the record indicates Crenshaw used none. While this
warning did not specify what type of guard ought to be used, it conveyed enough
information for Crenshaw to know the machine should not be operated without some
guard in place to protect the operator. Thus, to the extent Crenshaw permitted Santos to
operate the press with no guards, it completely disregarded that directive from the
manufacturer.
Crenshaw also argues the language of the Instruction Manual Warnings was
more permissive than mandatory. But, as we have already stated, a manufacturer could
potentially “require” use of a guard through urgent suggestive or mandatory language.
Whether these warnings meet such a description is an issue for the trier of fact.
At oral argument, Crenshaw made a brand new contention: even if the
Instruction Manual Warnings were specific requirements, the power press exception
would not apply because there would have been no “removal,” as that term is defined in
subdivision (a)(5) of the statute. (See § 4558, subd. (a)(5).) Counsel for Crenshaw
argues that the statutory definition of removal requires the guard to be “either installed by
the manufacturer or installed by the employer . . . .” (Ibid.) Thus, since the guards in this
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instance were supposedly installed by CDM, and not by Crenshaw, this definition would
not apply. We reject this contention for several reasons.
First, as Crenshaw admitted in its brief, it conceded for purposes of
summary judgment that it had removed a point of operation guard. A party may not raise
for the first time on appeal issues conceded before the trial court. (See Royster v.
Montanez (1982) 134 Cal. App. 3d 362, 366-367.) We also note that the statute bases
liability on either a failure to install a guard or the removal of same. Santos’ complaint
alleges both in the alternative. So to the extent Crenshaw negated only a removal, it did
not meet its burden on summary judgment to also negate a failure to install.
But even if the removal issue were properly raised and/or dispositive, we
would still reject Crenshaw’s argument. As an initial matter, Crenshaw does not fully
quote subdivision (a)(5) of the statute. The subdivision provides that the term “removal”
applies to guards either installed by the manufacturer “or installed by the employer
pursuant to the requirements or instructions of the manufacturer.” (§ 4558, subd. (a)(5).)
In its ordinary meaning, the word “install” means “to set up for use or
service.” (Webster’s 3d New Interenat. Dict. (1981) p. 1171, col. 1.) Section 4558 does
not specifically define “installed,” although it does define the “failure to install” as
“omitting to attach a point of operation guard . . . .” (§ 4558, subds. (a)(2) & (5).)
“Terms defined by the statute in which they are found will be presumed to have been
used in the sense of the definition.” (In re Marriage of Stephens (1984) 156 Cal. App. 3d
909, 913.) From the Legislature’s definition of the phrase “failure to install,” we can
reasonably ascertain that “install” is intended to be synonymous with “attach.” The word
“attach” means “to make fast or join . . . .” (See Webster’s 3d New Internat. Dict. (1981)
p. 140, col. 1.) Either definition of the word “install,” therefore, is broad enough to
include a guard permanently bound to a machine, or a guard fastened in a manner so as to
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be removable.10 If a guard is capable of being removed, then it is possible for an
employer to “install” the guard – by attaching it – every time the machine is used. Given
Niagara’s instruction to use “adequate guards,” a jury could reasonably conclude that
Crenshaw installed the guard pursuant to Niagara’s instruction each time it was attached
to the machine.
We also disagree with Crenshaw’s contention from a policy perspective.
We cannot imagine that the Legislature intended its definition of “removal” to shield an
employer who removed a point of operation guard required by the manufacturer simply
because the employer himself or herself had not installed it in the first instance. In this
case, CDM first put the guards on the machine, and the guards could be viewed as
required by the manufacturer. Crenshaw should not escape liability simply because
chance interposed a middleman in this case.
DISPOSITION
Summary judgment is reversed. Santos is to recover her costs on appeal.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
ARONSON, J.
10 We are cognizant of the holding in Gonzalez v. Seal Methods, Inc. (2014) 223 Cal. App. 4th 405
(Gonzalez) that a “point of operation guard is a device capable of being permanently attached to the power press.”
(Id. at p. 410.) We do not agree that the definition of a point of operation guard must be so restrictive, but the
Gonzalez facts are importantly different; the safety feature in question there was a safety block moved by the worker
in and out of the point of operation. The court therefore found it was not a device installed or removed by the
manufacturer or employer. (Ibid.)
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