Herrera v. Unistar Food Processing
Filed 11/14/13 Herrera v. Unistar Food
Processing CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
JOSE HERRERA,
Plaintiff and Appellant,
v.
UNISTAR FOOD
PROCESSING, INC.,
Defendant and Respondent.
B241440
(Los Angeles
County
Super. Ct.
No. KC060484)
APPEAL from
a judgment of the Superior Court
of
County, Robert A. Dukes, Judge. Affirmed.
Mancini
& Associates, Marcus A. Mancini, Timothy J. Gonzales, Michael R.
Fostakowsky; Benedon & Serlin, Gerald M. Serlin and Wendy S. Albers for
Plaintiff and Appellant.
Koeller,
Nebeker, Carlson & Haluck, Gary L. Hoffman and Tracy L. Hughes for
Defendant and Respondent.
_______________________
>
INTRODUCTION
After a
serious industrial accident involving a commercial meat grinder, plaintiff Jose
Herrera sued his employer, defendant Unistar Food Processing, Inc. (Unistar),
pursuant to Labor Code section 4558 (section 4558), the power press exception
to the exclusivity provision of the worker’s compensation law. Unistar successfully moved for summary
judgment on the ground that the meat grinder was not a power press within the
meaning of section 4558. Herrera appeals
from the judgment. We conclude the trial
court properly granted the motion and affirm the judgment.
FACTUAL AND
A. The
Accident
Herrera
worked at Unistar’s facility in Pomona
using a Butcher Boy meat grinder to grind cubes of frozen raw pork. The meat grinder Herrera used consisted of a
metal box with a rectangular pan at the top.
The pan had a hole that acted as a hopper or a chute into which a
Unistar employee fed the meat 10.5 inches down towards a metal screw or
worm. The metal screw or worm was housed
in a steel tube all the way to where a metal plate was installed. The meat moved past a knife, located 14
inches from the center of the hopper,
deposited into a plastic bag.
Herrera’s job
at Unistar was to grind cubes of frozen pork by placing them onto the plate of
the meat grinder and then push them into the hopper. Because the cubes of pork were frozen, they
would bounce around on the rotating worm screw, and he had to use his hand to
feed the worm. Herrera would place his
right fist into the vertical hopper and push the frozen meat against the
rotating worm housed within the horizontal chute until the worm grabbed onto
the meat.
perforated plate through which the ground meat would “pour out†and fall
directly into a plastic bag that Herrera held with his left hand. When Herrera thought the required amount of
meat had fallen into the bag, he would turn off the machine and weigh the
bag. Once the bag had achieved the desired
weight, Herrera would tie the bag and put it on a pallet, which Unistar distributed
to buyers. Unistar did not shape the
meat or do anything else with it before shipping it.
There never
was any type of guard over the opening to the rotating worm during the entire
time Herrera used the meat grinder. Herrera knew of a guard “that was hanging,†but
he did not know if it was the guard for the meat grinder and he never made any
inquiries about it.
On February
4, 2009 Herrera was pushing the cubed pork down the machine’s vertical chute
using his gloved right fist, as he had been trained. The accident occurred when his fist became
stuck to the frozen pork and the machine drew his right hand and arm into the
machine’s rotating screw. At the time of
the accident, the meat grinder was not equipped with its protective guard. As a result of this accident, a portion of
Herrera’s right arm had to be amputated.
B.
Summary Judgment
On June 22, 2011 Herrera filed his
of action against Unistar for a violation of section 4558.
power press within the meaning of section 4558 and that Unistar had failed to
install or had removed the point of operation guard supplied by the
manufacturer of the machine.
Unistar
filed a motion for summary judgment.
Unistar argued that Herrera could not “establish sufficient facts to
invoke the power press exception to the workers’ compensation exclusive remedyâ€
set forth in section 4558. Unistar
argued that the meat grinder did not include a die that created a mirror image
product and that the meat grinder did not produce material used to manufacture
another product.
In support
of its motion for summary judgment Unistar submitted the declaration of Michael
Fourney, a mechanical engineer, along with excerpts of Herrera’s deposition
testimony. Unistar also submitted
pictures of the meat grinder and its various parts, as well as excerpts from
the Parts List and Instruction Manual for the Butcher Boy meat grinder.
In his
brief declaration Fourney stated as follows:
“l. I am a Registered Professional Mechanical
Engineer and have been qualified as an expert on numerous occasions.
“2. On December 15, 2011, I inspected the subject
Butcher Boy Meat Grinder Model A56H.P. Serial Number 949 at Unistar Foods
Processing Facility in Pomona, California.
“3. As part of my inspection, I took photographs
and measurements of the various aspects of the machine.
“4. The meat grinder consists of a metal box with
a rectangular pan at the top.
“5. In the rectangular pan is a hole that acts as
a hopper or a chute where the meat is fed down towards a metal screw or worm.
“6. The rotating metal screw moves the meat
towards a 4-bladed knife.
“7. The meat is then moved past the knife through
a metal plate with multiple holes.
“8. The measurement between the bottom of the
metal rectangular pan down the hopper to the metal screw is 10.5 inches. . . .
“9. The measurement from the center of the hopper
to the 4-bladed knife is 14 inches. . . .â€
C. Herrera’s
Opposition
In
opposition to Unistar’s motion for summary judgment, Herrera submitted the
declaration of Richard Chandler, a mechanical engineer. After inspecting the meat grinder and the
operating manual and parts list, Chandler declared as follows: “The subject meat grinder is designed to be
manually supplied with solid pieces of meat that have been pre-cut to an
approximate size of 2-inch cubes.
Further, the operator is to use a tool or ‘stomper’ through a guard to
push the cubed meat into a vertical throat that connects to a horizontal feed
screw that is turned by a 7.5 horsepower motor. . . . The feed screw pushes the meat cubes forward
toward a perforated plate (or die) with substantial force. . . . The feed screw forces the meat against the
internal face of a perforated plate (or die), and at the face of the perforated
plate (or die), the meat is cut into finely sized pieces by a rotating four
blade knife (‘spinner’) that is attached to the end of the feed screw. As a result of the pressure or force from the
feed screw, the finely sized pieces of meat are then extruded through the
perforations in the plate (or die).†Chandler
also stated: “At the time of Plaintiff’s
injury, the subject meat grinder was producing raw ground pork. According to the Internet web site of Unistar
Foods, Inc., they are in the business of selling meat to restaurants and
markets. The ground meat produced by the
subject meat grinder is used by restaurants to produce ground pork based food
items for the restaurant patrons. Based
on the use of ground meat in restaurants to produce new products that are
different than that produced in the subject machine, it is my opinion that the
subject machine produces a product that is used in the manufacture of other
products.â€
Chandler
further observed that “[t]he solid 2 inch cube pieces of meat that are fed into
the subject meat grinder are resized by shredding from the rotating feed screw
and by being chopped to a fine size with the rotating knife. When the meat has been resized into finely
sized particles, it is an amorphous mass and is without form. The end product from the subject meat grinder
is formed when the amorphous mass of finely sized particles are [
by an extrusion operation. Based upon
the extrusion operation imparting the shape to the material, it is my opinion
that the subject meat grinder is a machine that forms materials.†“The finely sized particles of meat are
extruded through the numerous perforations or round holes in a 6 inch diameter
by ¾ inch thick steel disk (or die). The
extruded stands of material are formed or shaped by the forces (originating
from the feed screw) that are pressing the material against the perforated disk
(or die) and forcing the material to extrude through the holes in the disk (or
die). It is the perforated disk (or die)
that determines the shape of the product and not the rotary knife or the feed
screw. . . . Based on the
above, it is my opinion that the shape is imparted to the material by the
pressing the material against the perforated disk (or die), and it is the
perforated disk (or die) that determines the shape of the product.â€
Chandler
also explained that “[t]he extrusion of the material through the holes in the
perforated disk (or die) results in a product in which the number of strands of
material are exactly the same as the number of holes in the disk (or die). In addition, the diameter and/or shape of each
of the individual material strands is approximately the same as the diameter
and/or shape of the corresponding hole in the perforated disk (or die). Based on the above, it is my opinion that the
configuration of the perforated disk (or die) replicates itself in some form in
the extruded product.†“Because the
perforated disk (or die) imparts shape to the material by pressing against the
material . . . , and because the configuration of the perforated
disk (or die) has been replicated in some form in the product . . . ,
it is my opinion that the perforated disk is a die. It is my further opinion that in the subject
meat grinder the formation of materials is effectuated with a die.â€
Chandler
also opined that Herrera suffered his injury at the point of operation, “where
the meat is manually fed into the machine and where the feed screw advances the
material or meat.†Chandler
noted that the guard that had been removed from the machine was the point of
operation guard, which the manufacturer of the meat grinder provided or
required. Finally, Chandler opined that
Unistar’s removal of the point of operation guard was a substantial factor in
causing Herrera’s injuries and that Herrera would not have been injured “[i]f
the guard [had] been placed over the vertical throat . . . .â€
D. Trial
Court’s Ruling and Judgment
The trial
court granted Unistar’s motion for summary judgment. The court found that Unistar met its initial
burden of proof, “as there is no evidence that a die is used in any of the
parts of the subject meat grinder, nor that the ground meat is used in the
manufacture of other products.†The
court further determined that Herrera “failed to meet his burden in opposition to
the motion since the product formed by the meat grinder is not a mirror image
of the holes in the metal end plate, so that the metal end plate does not
constitute a ‘die.’†The court noted
that “the holes from the end plate form the meat into an entirely different
shape, i.e., cylindrical strands.
[Herrera’s] definition of ‘die’ is too broad, rendering the narrow
exception in . . . § 4558 meaningless. While the holes in the metal plate do shape
material, they do not shape the material into a mirror image of the die. Moreover, [Herrera] has produced no evidence
so as to meet its burden in opposition to Unistar’s position that the ground
meat was not used in the manufacture of other products, as provided
by . . . § 4558.â€
The trial
court concluded that the meat grinder was not a power press within the meaning
of section 4558, subdivision (a)(4), because “it does not utilize a die which
is designed for use in the manufacture of other products.†The court therefore determined that worker’s
compensation was Herrera’s exclusive remedy.
The trial court entered judgment in favor of Unistar, and Herrera
appealed.
DISCUSSION
A. Standard
of Review
Under Code
of Civil Procedure section 437c, subdivision (c), a defendant is “‘entitled to
summary judgment only if “all the papers submitted show that there is no
triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.â€
[Citation.] To determine whether
triable issues of fact do exist, we independently review the record that was
before the trial court when it ruled on defendant[’s] motion. [Citations.]
In so doing, we view the evidence in the light most favorable to
plaintiff[] as the losing part[y], resolving evidentiary doubts and ambiguities
in [his] favor.’ [Citation.]†(Elk
Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 605-606;
accord, Biancalana v. T.D. Service Co.
(2013) 56 Cal.4th 807, 813.) “While
appellate review operates under the same general principles applicable in the
trial court, the appellate court must independently determine the construction
and effect of the facts presented to the trial judge as a matter of law.†(Cohen
v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483; see
(2007) 156 Cal.App.4th 11, 18, 24.) We “‘are
not bound by the trial court’s stated reasons or rationales.’†(California
Highway Patrol v. Superior Court (2006) 135 Cal.App.4th 488, 496.)
B.
Compensation Exclusivity
Rule
“Where an
employee is injured in the course and scope of his or her employment, workers’
compensation is generally the exclusive remedy of the employee and his or her
dependents against the employer. (Lab.
Code, §§ 3600, subd. (a), 3602.)
The ‘exclusivity rule’ is based upon a presumed compensation
bargain: ‘[T]he employer assumes
liability for industrial personal injury or death without regard to fault in
exchange for limitations on the amount of that liability. The employee is afforded relatively swift and
certain payment of benefits to cure or relieve the effects of industrial injury
without having to prove fault but, in exchange, gives up the wider range of
damages potentially available in tort.’
[Citation.]†(
(2012) 55 Cal.4th 275, 279, fn. omitted.)
There are a
number of statutory exceptions to the exclusivity rule “that authorize the
injured worker to seek to augment the workers’ compensation benefits by
bringing an action at law for damages against the employer.†(LeFiell
Manufacturing Co. v. Superior Court, supra,
55 Cal.4th at p. 279.) One of these
exceptions, the power press exception, is set forth in section 4558. (Id.
at p. 280; Rosales v. Depuy Ace Medical
Co. (2000) 22 Cal.4th 279, 281; Islas
v. D & G Manufacturing Co., Inc. (2004) 120 Cal.App.4th 571, 575.) This exception must be construed
narrowly. (LeFiell, supra, at p.
286.)
Subdivision
(b) of section 4558 provides: “An
employee . . . 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.†There is no liability under section 4558,
however, “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.†(§ 4558, subd. (c).) A point of operation guard as used in section
4558 “includes any apparatus or device that keeps a worker’s hands outside the
point of operation while operating a power press.†(Bingham
v. CTS Corp. (1991) 231 Cal.App.3d 56, 59.)
“The
obvious legislative intent and purpose in
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; accord,
42 Cal.App.4th 1724, 1729.) Nevertheless,
the “Legislature did not intend all
workers injured by the absence of a point of operation guard to bring a legal
action. Rather, it intended to provide
relief only for a specific portion of those employees—workers whose employer
knowingly failed to install or removed guards from a machine where the original
manufacturer designed the machine to have a protective guard while in
operation.†(Jones v. Keppeler (1991) 228 Cal.App.3d 705, 711.)
C. Definition
of a Power Press
Subdivision
(a)(4) of section 4558 defines a power press as “any material-forming machine
that utilizes a die which is designed for use in the manufacture of other
products.†“This definition entails four
elements. The power press itself is a
machine. It is a machine that forms
materials. The formation of materials is
effectuated with a die. Finally, the
materials being formed with the die are being formed in the manufacture of
other products.†(Ceja v. J. R. Wood, Inc., supra,
196 Cal.App.3d at p. 1376.)
The
California Supreme Court defined the term “die†in Rosales v. Depuy Ace Medical Co., supra, 22 Cal.4th 279. The
court stated that “the term ‘die’ clearly denotes not all material-forming tools, but a subset of such tools. The devices described in dictionary
definitions of ‘die’ generally share two pertinent characteristics. First, they impart form to the material by
impact or pressure against the
material, rather than along the material. Second, they impart to the material some
version of the die’s own shape. The two
characteristics are logically related, since the die, acting by impact against
the material, can only alter the form of the material where it impacts it,
necessarily leaving an impression or cutout of its own shape (unlike a linear
cutting blade that, moving along the surface of the material, can be directed
to cut out any desired shape). The first
characteristic (impact or pressure against or through the material) particularly
describes dies used in presses and
hence limits the term as used in section 4558, subdivision (a)(4); but, because
the first characteristic necessarily implies the second, [it is proper to]
treat[] the second characteristic as a test of whether a tool is a die within
the meaning of section 4558, subdivision (a)(4).†(Id.
at p. 285.) The court then defined “dieâ€
as “a tool that imparts shape to material by pressing or impacting against or
through the material, that is, by punching, stamping or extruding†as opposed “to
a tool that imparts shape by cutting along
the material in the manner of a blade.â€
(Ibid.; see
2 Eskenazi et al., Cal. Civil Practice: Workers’ Compensation (2007)
Tort Actions Against Employers, Insurers, and Other Employees, ch. 15, § 15:14,
p. 15-21 [a die “does not refer to a tool that imparts shape by cutting along
the material in the manner of a bladeâ€].)
The
may be that one or more types of dies referred to in the quoted dictionary definitions
are exceptions to the above general principles in that they act to shape
material by means other than by pressing or impacting against or through the
material. Assuming that to be so,
however, we nonetheless do not believe the Legislature intended the term ‘die’
in section 4558, subdivision (a)(4)—a die used in a power press—to be
understood more broadly than as a tool that imparts shape to material by
pressing or impacting against or through the material, that is, by punching,
stamping or extruding. Indeed . . .
the Legislature presumably believed the operation of power presses without point of operation guards to be particularly
dangerous, because a press typically forms or cuts the material by use of high
pressure or strong impact of the die against or through the material, using a ‘powerful
pressing or stamping motion which can cause serious crush injuries.’ [Citation.]
In defining a ‘power press,’ for purposes of section 4558, in terms of a
‘die,’ the Legislature patently intended to embody the characteristic that
differentiates ‘press[es]’ from other ‘material-forming machine[s],’ i.e., the
use of a tool that imparts shape to material by pressing or impacting against
or through the material, that is, by punching, stamping or extruding.†(Rosales
v. Depuy Ace Medical Co., supra,
22 Cal.4th at pp. 285-286.)
Applying
these definitions, the Rosales court
held that a power lathe used to manufacture aluminum knobs was not a power
press within the meaning of section 4558 because the V-notching tool used to
shape the aluminum into a knob by cutting the material along its surface, and
which injured the plaintiff, was not a die.
(Rosales v. Depuy Ace Medical Co.,
supra, 22 Cal.4th at p. 285; see
(1993) 13 Cal.App.4th 1483, 1487-1489 [wood molding machine that did not
utilize a die was not a power press]; Ceja
v. J. R. Wood, Inc., supra, 196
Cal.App.3d at p. 1377 [small handheld circular saw is not a power press under
section 4558 because its blade is not a die].)
D. The
Power Press Exception Does Not Apply Here
In moving
for summary judgment, Unistar had the initial burden of showing that Herrera
could not establish one or more elements of his section 4558 cause of action or
that Unistar had a complete defense.
(Code Civ. Proc., § 437c, subd. (p)(2); Smith v. St. Jude Medical, Inc. (2013) 217 Cal.App.4th 313, 320;
Property Casualty Co. of
(2013) 216 Cal.App.4th 1040, 1050.) The
trial court concluded that Unistar met this burden, and on appeal Herrera does
not challenge this conclusion. (See
California (2005) 134 Cal.App.4th 224, 230 [“[o]n review of a summary
judgment, the appellant has the burden of showing error, even if he did not
bear the burden in the trial courtâ€].) Rather, Herrera contends that he met his
burden of producing evidence demonstrating there was a triable issue of
material fact regarding whether the meat grinder contained a die and that the
trial court erred in finding as a matter of law that the meat grinder was not a
power press because “the ground meat was not used in the manufacture of other
products.â€
Chandler
characterized the metal perforated plate in the meat grinder as a die and painstakingly
described the inner workings of the meat grinder. He explained that the rotating worm screw
shredded the cubes of frozen pork and forcefully pressed the meat against the
internal face of the metal plate and forced the meat into the
perforations. A spinning cross blade
then cut the meat. The continuous
pressure provided by the worm screw caused the cut particles of pork to be
extruded through the holes in the plate as strands of ground pork. Chandler explained that the perforated disk,
rather than the rotary knife or the worm screw, determined the shape of the
product, and that the number of strands extruded matched the number and size of
the holes in the plate. He further opined
that because the perforated disk “imparts shape to the material by pressing
against the material†and because “the configuration of the perforated disk (or
die) has been replicated in some form in the product,†“the perforated disk is
a die†and that “in the . . . meat grinder the formation of materials
is effectuated with a die.â€
Assuming
without deciding that Chandler’s declaration was sufficient to create a triable
issue of fact regarding whether the meat grinder contained a die that imparted
shape to material by using an extrusion process (see Rosales v. Depuy Ace Medical Co., supra, 22 Cal.4th at p. 285),
summary judgment. As noted above,
section 4558, subdivision (a)(4), defines a power press as “any
material-forming machine that utilizes a die
which is designed for use in the manufacture of other products.†(Emphasis added.) Under this unambiguous statutory language,
which we give “‘a plain and commonsense meaning’†(Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165), in order
for a material-forming machine to qualify as a power press under section 4558, the
die in the machine must be used to manufacture another product.
meat grinder here does not manufacture another product. What goes into the meat grinder comes out of
the grinder, albeit in smaller pieces. Cubed
pork goes in, and ground pork comes out.
Thus, a meat grinder does not manufacture a different product. It merely minces the meat.
Although
the question of whether a particular machine is a power press within the
meaning of section 4558 typically is a question of fact for the jury (
supra, 120 Cal.App.4th at p. 580), in
an appropriate case the court can resolve the question as a matter of law on
summary judgment. (See
Ace Medical Co., supra, 22 Cal.4th at pp. 285, 286 [V-notching tool which cuts
material rotating on a lathe is not a die; lathe using a sharp-edge cutting
tool is not a power press]; McCoy v.
Zahniser Graphics, Inc., supra, 39
Cal.App.4th at p. 111 [sheet metal plate used in printing process is not a die
within the meaning of section 4558; printing press is not a power press].) This is such a case. (See Puentes v. Wells Fargo Home Mortgage, Inc. (2008) 160 Cal.App.4th
638, 642-643 [where “‘the material facts are not in dispute and the parties simply
dispute the legal significance of the facts, the matter may be resolved on
summary judgment as a matter of law’â€].)
Therefore, the trial court properly granted Unistar’s
motion for summary judgment.
name="_ftnref6" title="">[6]
DISPOSITION
The
judgment is affirmed. Unistar is to
recover its costs on appeal.
SEGAL,
J.
We concur:
WOODS,
Acting P. J. ZELON,
J.
name="_ftn1" title="">
did not know the function of the spinner.
He believed that the worm ground the meat.
those occasions when the frozen pork stuck to his glove, Herrera often feared
that his hand or arm would be pulled into the horizontal chute housing the
rotating worm screw. He did not voice
his concerns to anyone, however, because he was just doing what he had been
taught to do.
