ROSALES v. DEPUY ACE MEDICAL COMPANY

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Court of Appeal, Second District, Division 3, California.

Hector ROSALES, Plaintiff and Appellant, v. DEPUY ACE MEDICAL COMPANY, Defendant and Respondent.

No. B122694.

Decided: March 04, 1999

William J. Cleary, Jr., Los Angeles;  Binder & Norris and Paul S. Norris, Pasadena, for Plaintiff and Appellant. Graham & James, Benjamin E. Goldman and Brian F. Van Vleck, Los Angeles, for Defendant and Respondent.

Hector Rosales (plaintiff) was employed as a machinist by Depuy Ace Medical Company (defendant).   While working with the Wasino L3-J3, a machine which uses various tools to form aluminum into knobs (the machine), plaintiff was injured when his hand entered an area within which the tools moved.   The machine had been equipped with a point of operation guard, which would have prevented the machine from operating while his hand was in position to be injured, but this safeguard had been disabled.

Plaintiff received compensation through the workers' compensation system, but he also filed a civil action against defendant pursuant to Labor Code section 4558,1 alleging that the machine was a power press, and that his injury was proximately caused by his employer's knowing removal of the point of operation guard on such power press.   Defendant made a motion for summary judgment on the ground that the machine was not a power press within the meaning of section 4558.   Plaintiff opposed this motion.   The trial court granted defendant's motion, and plaintiff filed notice of appeal.2  We conclude that defendant did not carry its burden as a moving party, and reverse.

FACTUAL AND PROCEDURAL BACKGROUND 3

On April 29, 1997, plaintiff filed a complaint for damages against defendant.   This complaint contained four “causes of action”:  (1) violation of Labor Code section 4558;  (2) negligence;  (3) strict liability;  and (4) request for punitive damages.   Defendant answered with a general denial, and alleged various affirmative defenses, including that the action was barred because the Workers' Compensation Act (§§ 3200 et seq.) provided the exclusive remedy for plaintiff's claims.

On March 11, 1998, defendant filed its motion for summary judgment or, in the alternative, for summary adjudication of issues.   The ground for this motion was that there was no triable issue of material fact and that the exclusive remedy for plaintiff's claim was provided by workers' compensation.   In support of this motion, defendant provided the court with the following exhibits:  (1) its request for admissions and plaintiff's verified responses thereto;  (2) excerpts from plaintiff's deposition transcript;  (3) a hard copy printout of the computer program controlling the machine at the time of plaintiff's injury;  (4) a lodged copy of a videotape of the machine as well as of a “punch press” machine;  and (5) copies of still photos from the videotape showing the exterior and interior of the machine as well as the operation of the “V-notching tool” which was in use at the time of plaintiff's injury.   Defendant also asked the trial court to take judicial notice of the parties' stipulation with request for award and award of workers' compensation to plaintiff in plaintiff's workers' compensation proceeding.4

Defendant's separate statement of undisputed facts provided, in relevant part, that (1) plaintiff's injury occurred while he was operating machines during the course of his employment, (2) all of the tools used on the machine utilized cutting forces, “in one way or another to shape the material,” (3) the part being manufactured at the time of plaintiff's injury was an aluminum knob, (4) the tool on the machine which injured plaintiff was the “V-notching tool,” (5) such tool is a “carbide-point cutting tool with a steel shaft,” and (6) during the manufacture of the knob, the “V-notching tool creates a V-notch on the knob by moving down the side of the knob and making a cut which is .65 inches in length.”   Plaintiff agreed that these facts were undisputed.   Defendant also contended that it was undisputed that plaintiff's hand was injured when the V-notching tool “was being brought over to the face of the part and before the V-notching tool began operation,” but plaintiff disputed this fact, claiming instead that his hand was injured “when the V-notching tool of the [machine] was operating.” 5

In its memorandum in support of its motion for summary judgment, defendant described the machine as a computer numerically controlled, or “CNC” lathe.   According to defendant, “[b]y using multiple computer-controlled tooling stations the lathe can perform an entire sequence of drilling and cutting functions on a given part without tool changes.”  “As the operator stands in front of the sliding door of the lathe, there is a spindle on his left which holds the metal to be machined [citation to evidence].   The metal held in the spindle is a maximum of one inch in diameter and is fed into the lathe as part of a twelve-foot long column of raw material through a pipe-shaped tube.  [Citation to evidence.]   On the right of the lathe, and opposite the spindle, is a turret with twelve different tooling stations.  [Citation to evidence.]  [¶] The turret is controlled by a computer program, and its purpose is to bring the various tools which can be fitted into the lathe into the correct position in order to precisely cut the metal part being manufactured.   [Citation to evidence.]   Plaintiff was injured when one of these tools, ‘a carbide point cutting tool,’ struck his hand as it was being moved into position by the turret of the lathe.  [Citation to evidence.]   The turret manipulates the positioning of the various tools by rotating them into position in front of the part being machined, by sliding the tool toward or away from the part, or by moving the tool back and forth across the front of the metal part.  [Citation to evidence.]   Some of the tooling stations on the lathe are ‘live,’ which means that the tool may be spinning in order to cut or plane a part which is held stationary in the spindle.   Alternatively, the material may be spinning in the spindle while the cutting tool remains stationary.   [Citation to evidence.]   However, ‘All of the tools used on the L3-J3 use cutting forces, in one way or another to shape the material.’  [Citation to evidence.]”

After thus indicating that the machine uses twelve different tools, some of which slide toward or away from the part being formed, defendant noted in a footnote that “The specific functioning of tools which are not involved in Plaintiff's injury are not material to the issue presented by [defendant's] motion.”   Defendant then went on to describe the specific tool in use at the time of plaintiff's injury, which it described as a “ ‘V-notching tool’ which is ‘a carbide point cutting tool with a steel shaft.’ ”   It then argued that the Legislature did not intend to include, in the definition of “power press,” machines which did not uniformly employ a powerful pressing or stamping motion which can cause serious crush injuries, citing Graham v. Hopkins (1993) 13 Cal.App.4th 1483, 1490, 17 Cal.Rptr.2d 82.   Therefore, because the machine in question here employed cutting tools rather than a single “mirror image” pressing die, it was not a “power press” within the meaning of section 4558, “either in terms of its general design or specific operation at the time of Plaintiff's injury.”

Plaintiff opposed this motion.   Plaintiff argued that his evidence showed, among other things, that the machine was a power press within the meaning of section 4558, that it had a manufacturer-installed point of operation guard which was later rendered inoperational by defendant, and that he had been injured as a result of the disabling of the point of operation guard.   According to plaintiff, the machine was a power press within the meaning of section 4558 because it utilized a die to form materials which were being formed in the manufacture of other products.   Plaintiff also contended that defendant had failed to offer any expert testimony that the machine was not a power press within the meaning of section 4558.

In support of his opposition, plaintiff offered his own declaration, and that of John E. Winslow, a degreed mechanical engineer with more than 32 years of experience in machine guarding safety.   According to plaintiff's declaration, the machine had been purchased by defendant directly from its manufacturer in or about 1982.   At the time the machine was delivered, its “safety sensor” or point of operation guard, which had been provided by the manufacturer, was operational.   At that time, plaintiff was told by his supervisor, John Pyle, that the machine was a “power press” machine.   According to plaintiff, Pyle also told him, “in sum and substance on numerous occasions,” that the machine used a die to form materials being formed in the manufacture of other products.   According to plaintiff, from 1982 to 1996, until his injury, he was the principal operator of the machine, and during that period of time it utilized a die to form materials.   At some point before the date of his injury, his supervisor, David Provencio, specifically authorized and directed him to place a bypass wire on the safety sensor, thus disabling it.   Thereafter, defendant required plaintiff to work on the machine with the bypass wire in place.   Because the safety sensor was disabled, plaintiff was able to open the door of the machine while it was manufacturing a part, and, when he opened the door, his hand became caught in the mechanical movements of the machine, causing him significant physical injury.   Based on his reading of section 4558 and on his education, skill, training and experience as the principal operator of the machine for 14 years, plaintiff expressed his belief that the machine was a power press, but did not specifically state the bases for this belief.

In his declaration, Winslow described his expertise in machine guarding safety, including his jobs at various businesses, including plant manager at a high-volume transfer press and stamping manufacturer.   Winslow's professional experience included directing safety over, among other things, die casting, stamping, machining, injection molding, specialized machining and assembly operations, hot stamping, grinding, transfer press, and automatic high-speed assembly operations.   He was a member of the American Society of Safety Engineers, a member of the National Safety Council, a member of the American Society of Mechanical Engineers, and a member of Tau Beta Pi, an engineering scholastic honor society.   He was also a past member of the National Safety Council Power Press and Forging Rules Committee.   Based upon unspecified information and materials provided to Winslow by plaintiff's counsel, as well as his reading of section 4558, Winslow opined, based upon his education, experience, training and qualifications, that the machine in question “was being utilized as a ‘power press' machine pursuant to the provisions of California Labor Code Section 4558, in that it was [a] machine that was utilizing a die to form materials.   This die was designed for use in forming materials in the manufacture of other products.”

Defendant filed a reply in which it objected to the “legal conclusions” by plaintiff and Winslow as inadmissible, irrelevant, incompetent, and without foundation.   Defendant pointed out, among other things, that there was no evidence that Winslow had ever seen the machine in question, and that his opinion did not describe what part of the machine was supposedly a die, nor why he considered it to be a die.   Defendant also pointed out that during plaintiff's deposition plaintiff's attorney had objected that plaintiff was not competent to interpret the term “die” to the extent the term involved particular legal significance or an interpretation of the statute, and that plaintiff had testified that he could not explain the common meaning of the term “die.”

The trial court sustained defendant's objections to plaintiff's declaration as well as to Winslow's declaration.   It then granted defendant's motion for summary judgment, finding that defendant had satisfied its burden of showing that plaintiff's causes of action were all barred by the exclusivity provisions of the Workers' Compensation Act, given that the machine that injured plaintiff was not a power press within the meaning of section 4558.   According to the trial court's minute order, defendant's uncontroverted evidence showed that the machine was using cutting force and a carbide bit cutting tool at the time plaintiff was injured.   Plaintiff, on the other hand, had failed to submit any admissible evidence or facts to show that the machine was a power press, and did not dispute that he was injured by a machine which uses a sharp edge cutting tool rather than a “mirror image” pressing or stamping die.

As noted above, the trial court signed an order granting summary judgment and ordering that judgment be entered forth with in favor of defendant, and plaintiff filed a timely notice of appeal.

CONTENTIONS ON APPEAL

Plaintiff contends that there was a triable issue of material fact as to whether the machine is a power press, and that the trial court erred by sustaining defendant's objections to plaintiff's declaration and that of plaintiff's expert.   Defendant disputes each of these contentions.

DISCUSSION

1. Defendant Failed to Carry Its Burden of Proof as the Moving Party

 A defendant moving for summary judgment may satisfy its burden by showing either that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense to such cause of action.  (Code Civ. Proc. § 437c, subd. (o)(1).)   It is only after the defendant has met this burden that the burden shifts to the plaintiff to prove the existence of a triable issue of material fact as to the existence of the element or elements attacked by defendant, or as to the defense relied upon by defendant.  (Code Civ. Proc. § 437c, subd. (o)(2).)   In determining whether the moving party has met its burden, its declarations and evidence will be strictly construed “in order to avoid unjustly depriving the plaintiff of a trial.”  (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601, 50 Cal.Rptr.2d 431.)

 Here, plaintiff could not proceed against defendant, plaintiff's employer, outside the exclusive remedy of the workers' compensation system, unless the requirements of section 4558 were met.   In other words, his injury had to have been proximately caused by defendant'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.”   Thus, one element of a cause of action under section 4558 is that the machine from which a point of operation guard has been removed must be a power press.   It was this element to which defendant addressed its motion for summary judgment, so defendant, as the moving party, had the burden of showing, by uncontroverted evidence, that the machine was not a power press within the meaning of section 4558.

As defendant acknowledged in its motion for summary judgment, the machine here used a rotating turret to position any one of twelve tools in the correct location to form, by drilling and cutting, aluminum rod into knobs used in orthopedic braces, and that some of these tools slide toward or away from the part being formed.   However, in its motion for summary judgment, defendant specifically noted that its motion was directed only to the tool which caused the injury to plaintiff, because “[t]he specific functioning of tools which are not involved in Plaintiff's injury are not material to the issue presented by [defendant's] motion.”   In other words, it was not going to discuss the other eleven tools or their functions at all in making its motion.

Defendant then proceeded on the basis that because the tool which injured plaintiff was not a die, but instead a “V-notching tool,” in other words, a “carbide point cutting tool with a steel shaft,” the machine was not a power press, given that Labor Code 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.”  (§ 4558, subd. (a)(4).)6

 However, nothing in section 4558 requires that a power press must be using a die at the time of an injury-causing accident.   Instead, all that is required before an employee may recover against an employer in a civil action, is that an employee's injury be “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.”   And a power press is defined as any material forming machine which utilizes a die, not as a machine which was utilizing a die at the time of a particular injury.   Thus, if any of the twelve tools available on a machine to form the knobs was a die, then the machine was a “material-forming machine that utilizes a die,” in other words, a power press within the meaning of section 4558.

Therefore, in order to establish that the machine here was not a power press within the meaning of section 4558, defendant had the burden of establishing that the machine did not utilize a die or dies in the manufacture of other products.   Defendant did not meet that burden, and therefore we reverse.

2. The Trial Court's View of What Constitutes a Power Press Was Overly Restrictive and Adds an Element Not Found in or Necessarily Implied by Section 4558 or Applicable Regulations

As noted above, defendant took the position that, to be a “power press” within the meaning of section 4558, a material-forming machine must form material through the use of a pressing or stamping die, and that “a sharp edge cutting tool,” such as the one which injured plaintiff, is not a die.   The trial court agreed with defendant that, to qualify as a die as that term is used in section 4558, a tool must create a “mirror image” of itself by pressing or stamping the material being formed.   Given our reversal of the judgment in favor of defendant, it is appropriate that we provide the trial court with guidance in connection with any further motions for summary judgment or similar legal questions related to the definitions of “die” and “power press.”   We therefore will address two questions:  (1) what constitutes a “die” as that term is used in section 4558, and (2) what constitutes a “power press” as that term is used in section 4558?

a. A Die Need Not Be a Tool Which Forms a Mirror Image When It Is Pressed or Stamped Into the Material Being Formed

 As previously noted, a “power press,” for purposes of section 4558, is defined only as “any material-forming machine that utilizes a die which is designed for use in the manufacture of other products.”  (§ 4558, subd. (a)(4).)   In other words, a machine which does not utilize a die is not a power press.  Section 4558's definition of “power press” makes no mention of pressing or stamping, nor of mirror images, and the section does not define “die.”   However, applicable regulations define “die” as “[t]he tooling used in a press for cutting or forming material.   An upper and a lower die make a complete set.”  (Cal.Code Regs., tit. 8, § 4188, subd. (b), “Specific Definitions for Power Operated Presses, “Die.”) But section 4558 says a power press is a machine which “utilizes a die”-it does not require that it utilize a “complete set” of dies, or an upper and a lower die.7  The dictionary defines “die” as “[plural dies] :  any of various tools or devices for imparting a desired shape, form, or finish to a material:  as a (1) :  one of a pair of cutting or shaping tools that when moved towards each other produce a certain desired form in or impress a desired device on an object by pressure or by a blow, this tool being the larger of the pair or the part into which the punch enters-called also matrix (2) :  a device composed of a pair of such tools (3) :  a set of dies (as a set of triple-action dies including the matrices, punches, springs) that make up a complete tool b:  a hollow internally threaded screw-cutting tool made in one-piece or composed of several cutting parts, often adjustable as to distance, and used for forming screw threads (as on bolts) and compare DIE HEAD, DIESTOCK, SPRING DIE c:  a knife or cutter used to cut out blanks (as for soles in shoemaking) d:  the mold in which a die casting, a powdered-metal casting, or a drop forging is made e:  a block of hard metal or precious stone with a perforation of definite shape that is used in making wire and rod by drawing or extrusion f:  a perforated block through which plastic material is forced to make it assume a desired shape:  as (1) :  such a block through which clay is forced in molding bricks (2):  the metal end of a cookie press or cake decorator that is pierced with various designs through which dough or frosting can be forced out into fancy shapes g:  a heavy iron ring or block on which ore is crushed (as in an edge mill or a stamp mill) h (1) :  a metal block with a designed intaglio into which a matching counterpart forces material (as paper or board) to be die-stamped or embossed-compare COUNTER, PLATE (2) :  a comparable device used to stamp, emboss, or mold a seal (as on paper or wax) i:  a rigid assembly of steel cutting and creasing rules with which flat sheets of paperboard are stamped out before being folded into cartons 7 [plural dies] :  a block of metal on which the design of a postage stamp is engraved and which is used in making the repeated impressions that form the printing plate.”  (Webster's Third New International Dictionary of the English Language, Unabridged (1966) “die,” col. c, p. 628, italics added.)

It is apparent from the relevant regulations and the multiple recognized dictionary definitions that a “die,” as that term is used in section 4558, should be very broadly construed and necessarily includes any cutting or forming tools which are utilized in a power press.   Obviously, this will include tools which operate in ways other than being pressed or stamped into material in order to make a mirror image.   Nothing in Graham v. Hopkins, supra, 13 Cal.App.4th 1483, 17 Cal.Rptr.2d 82, persuades us to the contrary.   In that case, plaintiff employee sued his employer pursuant to section 4558 after he was injured by a wood molding machine.   The machine consisted of five cutting heads against which boards were fed.   As a board passed the heads the heads cut or planed different sides of the board to shape it.  (Id. at p. 1486, 17 Cal.Rptr.2d 82.)   The matter was tried to the court, which, based on the defendant's expert's testimony that the cutting heads cut like a saw, not like a die, concluded that the machine did not utilize a die and that therefore it was not a power press within the meaning of section 4558.  (Id. at pp. 1486-1487, 17 Cal.Rptr.2d 82.)

The plaintiff appealed, and the appellate court, relying on Ceja v. J.R. Wood, Inc. (1987) 196 Cal.App.3d 1372, 242 Cal.Rptr. 531, noted that the dictionary definitions of a “die” listed by the court in Ceja had one characteristic in common:  that the shape of the die itself determined the shape of the product that is formed;  in other words, “the product formed or the cut made is in some sense a ‘mirror image’ of the die.”  (Id. at p. 1488, 17 Cal.Rptr.2d 82.) 8  The court therefore held that because the cutting heads on the wood molding machine did not create a mirror image of themselves, they were not dies, and thus the trial court did not err by concluding that the machine was not a power press.  (Ibid.) The court apparently felt compelled to adopt this “mirror image” test because otherwise, the definition of “die” plaintiff offered-“ ‘a device which shapes materials' ”-would be “so broad that it would rob the word of any meaning or purpose within the statute, ․ [i]ndeed, under this definition a chisel, a pair of scissors or a whittling knife would all be ‘dies.’   Common sense suggests the definition cannot be stretched that far.”  (Id. at p. 1488, 17 Cal.Rptr.2d 82.)

 In our view, the problem with the Graham court's analysis is that in trying to avoid overstretching the definition of “die” so as to avoid including chisels, scissors and whittling knives, the court unnecessarily restricted the definition of “die” to tools which produce mirror images of themselves.   It appears to us that the court lost sight of the fact that the ultimate question before it was whether a particular material-forming machine was a power press within the meaning of section 4558, and that question, in turn, called for a determination not only of whether the machine utilized a die or tool, but how it utilized it.   For the reasons discussed below, in particular the implementing occupational safety and health standards adopted by the Occupational Safety and Health Standard Board and published in Title 8 of the California Code of Regulations (see Labor Code, §§ 140, 142.3) related to power presses, we conclude that it is the manner in which a die or tool is used by a machine, not the nature of changes the die or tool makes to the material being formed (e.g., cuts or mirror image stampings) which is relevant in determining whether the machine is a “power press” within the meaning of section 4558.

b. A “Power Press” Is a Mechanically Powered Machine That Shears, Punches, Forms or Assembles Metal or Other Materials by Means of Tools or Dies Attached to or Actuated by a Slide

 The Occupational Safety and Health Standards Board is charged with adopting, amending, repealing and enforcing occupational safety and health standards and orders.  (Labor Code, §§ 140, 142, 142.3, 142.4.)   Such standards must be at least as effective as federal standards promulgated under Section 6 of the Occupational Safety and Health Act of 1970 (P.L. 91-586) 9 (Labor Code, § 142.3, subd. (a)), and must be consistent with the provisions of state law governing occupational health and safety.  (Labor Code, § 50.7, subd. (a).)

California Code of Regulations, Title 8, “Industrial Relations,” Division 1, “Department of Industrial Relations,” Chapter 4, “Division of Industrial Safety,” Subchapter 7, “General Industry Safety Orders,” Group 8, “Points of Operation and Other Hazardous Parts of Machinery,” Article 54, “Scope and General Definitions,” section 4188, subdivision (b), provides, in relevant part:

“Power Operated Presses.   For the purposes of article 55 [“Power Operated Presses”], power operated presses include all mechanically powered machines that shear, punch, form,[ 10 ] or assemble metal or other materials by means of tools or dies attached to slides, commonly referred to as mechanical power presses (punch presses), press brakes, hydraulic power presses (punch presses), and rivet setting machines.”  (Italics added.)

“Power Press, Hydraulic (Punch Press).   A machine which is hydraulically powered that shears, punches, forms, draws, or assembles metal or other material by means of tools actuated by slides.”  (Italics added.) 11

“Power Press, Mechanical (Punch Press).   A mechanically powered machine that shears, punches, forms or assembles metal or other material by means of cutting, shaping, or combination dies attached to slides.   A press consists of a stationary bed or anvil, and a slide (or slides) having a controlled reciprocating motion toward and away from the bed surface, the slide being guided in a definite path by the frame of the press.”  (Italics added.) 12

Section 4198 of Title 8 provides that Group 8's safety guarding requirements for point of operation and other hazardous parts of a machine “apply only to those mechanically or hydraulically powered machines that shear, punch, form, or assemble metal or other material by means of tools or dies attached to slides, commonly referred to as power operated presses.   Pneumatic power presses (as defined in section 4188), hot bending and hot metal presses, forging presses and hammers are excluded from the requirements of this article.   Sections 4192 through 4211 of article 55 apply to all mechanical power presses (punch presses).   Sections 4196 through 4202(a) and 4203 through 4205 of article 55 apply to all power operated presses regardless of type (with the exception of those machines excluded above).”

 In other words, the Occupational Safety and Health Standard Board, which is charged with adopting occupational safety and health standards and orders which are consistent with state law, and which must be at least as effective as federal regulations on the same subject, has adopted regulations which flesh out the simple definition of “power press” provided in section 4558, subdivision (b), and has discussed in more detail than in section 4558, subdivision (b), the manner in which dies are used in power presses.   “ ‘[A]n agency's expertise with regard to a statute or regulation it is charged with enforcing entitles its interpretation of the statute or regulation to be given great weight unless it is clearly erroneous or unauthorized.’   (Lusardi Construction Co. v. California Occupational Safety & Health Appeals Bd. (1991) 1 Cal.App.4th 639, 645 [2 Cal.Rptr.2d 297].)”  (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 526, 63 Cal.Rptr.2d 118.)   “ ‘ “[I]n determining the proper interpretation of a statute ․, the administrative agency's construction is entitled to great weight, and if there appears to be a reasonable basis for it, a court will not substitute its judgment for that of the administrative body.”  [Citations.]’  ” (O'Connor v. State Teachers' Retirement System (1996) 43 Cal.App.4th 1610, 1620, 51 Cal.Rptr.2d 540, quoting Campbell Industries v. Board of Equalization (1985) 167 Cal.App.3d 863, 868, 213 Cal.Rptr. 533.)

Given the deference due the Board's construction of the term “power press,” when section 4558 is read in conjunction with the standards adopted by the Board, it is apparent that a power press is a machine which forms material by using a die, or tool, which either is itself attached to a slide, or toward which a slide travels.13  Thus, under the Board's construction of what constitutes a “power press,” the die or tool involved need not be one which creates a “mirror image;” what is important is that the die or tool involved must be attached to or actuated by a slide.14

This interpretation of what a “power press” is obviously comports with the harm against which point of operation guards protect.   A power press, by its nature, can cause harm to its operator's hands and arms because the operator's hands and arms need not be involved in moving the die/tool against the material-that movement is accomplished by the press itself.   Therefore, the operator's hands and arms, if not prevented by some guard system, can be placed between the moving slide, die and the material, and there caught, crushed, pinched, pierced or cut-depending on the nature of the die in use.   The potential for harm to a worker, needless to say, is not dependent on whether the die is one which creates a “mirror image.”

Our conclusion that section 4558 was designed to discourage a general, rather than a specific, type of harm, in other words, to discourage injuries caused by any kind of tool attached to or actuated by a slide, not just injuries caused by tools which form a mirror image, is supported by the legislative history of section 4558.  Section 4558 (added by Stats.1982, ch. 922, p. 3369, § 12) was created by the enactment of Assembly Bill 684.   Assembly Bill 684 was originally worded so as to create an exception to the exclusive remedy of the workers' compensation system when a point of operation guard had been removed from a “punch press.”  Amendments to the bill resulted in changing “punch press” to “power press.”  (Compare Amendments to Assembly Bill No. 684 as Amended in Senate August 20, 1981, RN 82 013307, p. 10 with section 4558 as adopted.)   Based on the dictionary definition of “press,” the term “power press” clearly is a broader term than is “punch press,” and one in which different kinds of power presses, for example, drill presses, forming presses, and punch presses, are subsumed.   In fact, some opponents of the bill recognized that this change from “punch press” to “power press” broadened the scope of accidents which would fall within section 4558's exception to the exclusivity provisions of the workers' compensation system.   (See California Self-Insurers' Association Bulletin, Legislative Bulletin No. 7 (August 20, 1982) at p. 1 [warning its members that the third amendment of A.B. 684 “changed punch press to power press, thereby liberalizing that provision for the benefit of the trial bar”].)

Therefore, in any further proceedings in this case related to whether the Wasino L3-J3 is a power press within the meaning of section 4558,15 the trial court must determine whether the Wasino L3-J3 is a mechanically powered machine that shears, punches, forms (i.e., gives form or shape to material, or shapes, molds or fashions material into a certain state or condition after a particular model, or bends or stretches metal to conform to the shape of a die or other tool) or assembles metal or other materials by means of tools or dies attached to or actuated by a slide.   This is an issue of fact and, unless either party can establish, as a matter of law, that there is no triable issue of fact as to the machine's status as a power press based on this definition, it is an issue of fact which must be resolved by the trier of fact based on the evidence, including expert testimony, which is presented at trial.

3. Defendant's Evidentiary Objections

Because we conclude defendant did not carry its burden as the moving party, and the judgment must be reversed for that reason, we need not consider whether the trial court erred by sustaining defendant's objections to plaintiff's evidence.

DISPOSITION

The judgment is reversed.   Plaintiff is awarded his costs on appeal.

FOOTNOTES

1.   Labor Code section 4558, subdivision (b), provides, “An employee, or his or her dependents in the event of the employee's death, may bring an action at law for damages against the employer where the employee's injury or death is proximately caused by the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.”All further statutory references will be to the Labor Code unless otherwise noted.

2.   The record contains no judgment, and it appears that plaintiff's appeal was taken from the order granting defendant's motion for summary judgment and ordering that judgment “shall be entered forthwith.”   The parties have since supplied us with a copy of the judgment, so we treat plaintiff's appeal as being from such judgment.  (See Eisenberg, Horvitz & Wiener, Cal. Practice Guide:  Civil Appeals and Writs (The Rutter Group 1998) ¶ 2:264 at p. 2-117 and cases cited there.)

3.   The following facts and procedural history are taken from the parties' separate statements of undisputed facts, from the moving and opposing papers and the evidence presented in connection therewith, and from the clerk's transcript as a whole.

4.   We were not provided with the video tape which was lodged with the court, nor is it presently available from the superior court clerk.

5.   For reasons which become apparent in the discussion portion of this opinion, we do not find this disputed fact to be relevant to the disposition of the case.

6.   This definition has a patent ambiguity-is it the machine, or the die, which “is designed for use in the manufacture of other products”?  “It is a general rule of statutory construction,. ., that ‘ “modifying phrases are to be applied to the words immediately preceding them and are not to be construed as extending to more remote phrases.”   [Citation.]’  [Citation.]   An exception to this rule provides that ‘ “(w)hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be applicable to all”.’   [Citation.]”  (People v. Corey (1978) 21 Cal.3d 738, 742, 147 Cal.Rptr. 639, 581 P.2d 644, superseded by statute on another ground as stated in Melendez v. City of Los Angeles (1998) 63 Cal.App.4th 1, 6-7, 73 Cal.Rptr.2d 469;  Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1114, 81 Cal.Rptr.2d 471, 969 P.2d 564;  White v. County of Sacramento (1982) 31 Cal.3d 676, 680-681, 183 Cal.Rptr. 520, 646 P.2d 191.)   The phrase “which is designed for use in the manufacture of other products” is applicable as much to the word “machine” as it is to the word “die”;  therefore, the natural construction of the language demands that section 5488 be interpreted to mean that both the machine and the die be “designed for use in the manufacture of other products.”

7.   In Graham v. Hopkins, supra, 13 Cal.App.4th 1483, 17 Cal.Rptr.2d 82, the court noted that there are “ ‘single-piece’ dies.”   (Id. at p. 1488, 17 Cal.Rptr.2d 82.)

8.   The Ceja court did not itself make any mention of the “mirror image” aspect of dies.   Instead, it concluded that a “small, hand-held circular saw” was not a power press, and that a saw blade was not a die, and that a die cuts things in a substantially different way from a saw blade.  (196 Cal.App.3d at pp. 1376-1377, 242 Cal.Rptr. 531.)

9.   Federal regulations related to power presses and point of operation guards can be found at 29 Code of Federal Regulations, section 1910.211, subdivision (d), section 1910.212, subdivision (a)(3), and section 1910.217.

10.   To “form” means “1 a:  to give form or shape to ․2 a:  to give a particular shape to :  shape, mold, or fashion into a certain state or condition after a particular model ․ 8:  to bend or stretch (metal) to conform to the shape of a die or other tool․”  (Webster's Third New International Dictionary of the English Language, Unabridged, supra, “form,” col. a, p. 893.)

11.   To actuate is “to put into mechanical action or motion ․ to move to action․”  (Webster's Third New International Dictionary of the English Language, Unabridged, supra, “actuate,” col. c, p. 22.)   Given the regulatory definition of “ram,” see footnote 13, post, and the reference in these three definitions of different kinds of power presses to both “tools or dies attached to slides” and “tools actuated by slides,” the regulations apparently contemplate that in some cases the tool or die will be stationary and that its shearing, punching, forming, drawing or assembling effect will be actuated, i.e., put into action, by a slide, i.e., by the movement of the slide toward the stationary tool or die.

12.   These regulatory definitions of power presses are consistent with the dictionary definition of “press”:  “2 a:  an apparatus or machine by which a substance is cut or shaped (as by pressing, drawing, or stamping), by which an impression of a body is taken, by which a material is compressed or packed, by which pressure is applied to a body, by which liquid is expressed, or by which a cutting tool (as a drill) is fed into the work by applied pressure -Compare CHEESE PRESS, DRILL PRESS, FORMING PRESS, HYDRAULIC PRESS, PUNCH PRESS.”  (Webster's Third New International Dictionary of the English Language, Unabridged, supra, “press,” col. c, p. 1794, italics added.)

13.   The slide, plunger, mandrel or ram is the “reciprocating part of the machine [i.e., a power operated press] or any die piece attached to it, whichever comes closest to the stationary die.”  (8 Cal.Code of Regs. § 4188, subd. (b) “ram.”)

14.   This construction of what constitutes a “power press” apparently is consistent with the outcome in McCoy v. Zahniser Graphics, Inc. (1995) 39 Cal.App.4th 107, 45 Cal.Rptr.2d 871, in which Division 4 of this District concluded that a printing press was not a power press because it did not form materials to be used in the manufacture of other products.   The court concluded that the engraved sheet metal plate which applied ink to create printed words on the paper was not a die because it is not used to cut or form material to be used in the manufacture of other products.   (Id. at p. 111, 45 Cal.Rptr.2d 871.)   Although McCoy did not consider this issue, in all probability a printing press also does not use a die or tool which is attached to or actuated by a slide.

15.   As we have already discussed, this must be determined with respect to the entire machine, not just the particular operation on which plaintiff was injured.

CROSKEY, Acting P.J.

KITCHING, J. and ALDRICH, J., concur.