PETERS v. CITY AND COUNTY OF SAN FRANCISCO

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Court of Appeal, First District, Division 4, California.

Joseph PETERS, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.

No. A061042.

Decided: March 14, 1994

Mitchell S. Griffin, Kelly, Cox, Wooten, Griffin, Gill & Sherburne, San Francisco, for defendant-appellant. John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, for plaintiff-respondent.

Plaintiff and cross-appellant Joseph Peters brought a negligence action against defendant and appellant City and County of San Francisco under the federal Jones Act. (See 46 U.S.C. § 688.) After a court trial, judgment was entered in Peters's favor. The city appeals, contending that (1) it was denied its constitutional right to trial by jury; (2) the court's findings of negligence and (3) lack of contributory negligence were not supported by substantial evidence; (4) it was wrongfully denied the ability to call expert witnesses; and (5) Peters should have been required to present a prima facie case of “seaman's status” under the Jones Act. Peters cross-appeals, contending that (6) the trial court erred only in refusing to award him prejudgment interest on his entire wage loss award and (7) requesting that the city be sanctioned for a frivolous appeal. We remand for a hearing on the issue of prejudgment interest, but otherwise affirm the judgment.

I. FACTS

Since November 1981, plaintiff and cross-appellant Joseph Peters has been employed by defendant and appellant City and County of San Francisco. On May 23, 1987, he was attempting to lash two 130-foot long barges together with a small, manually operated handheld tool. The barges were to be used in a fireworks display to celebrate the 50th Anniversary of the opening of the Golden Gate Bridge. The fireworks contractor wanted the barges lashed tightly together so that technicians could walk safely from one to the other during the show. While trying to lash these two barges together, Peters injured his right arm. He developed cubital tunnel syndrome, disabling him from his customary employment.

In 1988, Peters filed a complaint against the city, alleging causes of action for Jones Act negligence, vessel owner negligence, unseaworthiness and maintenance and cure. In his 1991 at-issue memorandum, Peters declared $10,000 in medical expenses, $25,737 in past lost income and $15,000 in future lost income.

In April 1992,1 Peters's motion for summary adjudication of his seaman's status and of the existence of a city duty to Peters under the Jones Act was granted. The city's own motion for summary adjudication was denied. On April 24, when the trial court continued a May 1 trial date to August 3, it also ruled that discovery was to remain closed.

Also in April, the city moved to augment its expert witness list. The motion was denied. In May, the city moved for reconsideration of the denial of the motion to augment and for leave to reopen discovery. Both motions were denied and the city was ordered to pay $1,000 in sanctions as reasonable expenses and attorney fees. By a pretrial motion in limine, the city again sought to augment its expert witness list, without success.

In August, the city sought a writ of mandate to compel the trial court to conduct a jury trial, but the petition was denied. A court trial was conducted in September. In November, the trial court issued a proposed statement of intended decision, ruling that Peters had prevailed on his Jones Act negligence cause of action, that there was no contributory negligence on his part, awarding sums, and finding that Peters was entitled to prejudgment interest on his past lost income but not his future lost income. The court found against Peters on the other three causes of action.

The city requested a statement of decision. Final judgment was entered consistent with the proposed statement of intended decision. The court later set aside this judgment as inadvertently entered. In January 1993, a statement of decision was filed and a new final judgment was entered. The city appealed from this judgment and Peters cross-appealed, challenging only that portion of the judgment denying him prejudgment interest for future loss.

II. JURY TRIAL

First, the city contends that it was denied its constitutional right to trial by jury. Originally, Peters invoked his right to a jury trial, but later waived this right. The city then requested a jury trial, but the trial court ruled that right belonged solely to Peters as the plaintiff in a Jones Act case. The city then petitioned this court for a writ of mandate or prohibition to compel the trial court to try this matter before a jury. The corresponding request to stay the court trial was granted while this court considered the petition. Ultimately, we summarily denied the petition and lifted the stay. Neither the doctrines of res judicata nor of the law of the case preclude consideration of the same issue in a later appeal after summary denial of a petition for writ of mandate or prohibition. (See People v. Medina (1972) 6 Cal.3d 484, 491-492, fns. 6-7.) Peters contends that the trial court's order granting him a court trial is not reviewable on appeal because no exception was made to that ruling. However, we are satisfied that the writ petition constitutes a sufficient exception to the trial court's ruling to preserve this issue for appeal.

The Jones Act provides that any seaman who suffers personal injury in the course of employment may, at the seaman's election, maintain an action for damages at law, with the right of trial by jury. Peters's other claims--vessel owner negligence, maintenance and cure and unseaworthiness--arise under general maritime principles, rather than the Jones act. There is no independent right to jury trial of these claims, although if a plaintiff invokes the right to a jury trial under the Jones Act and the maritime claims arise from the same set of facts as the Jones Act claim, the maritime claims may also be tried to the same jury. (See, e.g, Fitzgerald v. United States Lines (1963) 374 U.S. 16, 21 [maintenance and cure claim tried to jury with Jones Act claim]; Cruz v. Hendy Intern. Co. (5th Cir. 1981) 638 F.2d 719, 723, overruled on another point in Michel v. Total Transp., Inc. (5th Cir. 1992) 957 F.2d 186, 191 [unseaworthiness action and Jones Act claim both tried to jury].) Thus, any right to jury trial of the three general maritime claims turns on the extent to which the Jones Act case is to be tried by a court or a jury.

When urging that the trial court erred in conducting a court trial, the city makes two basic arguments. First, it appears to argue that Peters had no right to waive a jury trial once he had filed his action in state court. Essentially, the city seems to contend that by filing his Jones Act claim in state court, he elected a remedy at law in state court--rather than a remedy in admiralty in federal court--which effectively required a jury trial. The Fifth Circuit Court of Appeals has rejected the specific contention that if a Jones Act or maritime case is to be tried in state court, it must be tried to a jury, for both Jones Act and general maritime claims. (See Linton v. Great Lakes Dredge & Dock Co. (5th Cir. 1992) 964 F.2d 1480, 1485, 1488-1490, cert. den. (1992) 506 U.S. 975 [113 S.Ct. 467].) The Jones Act does not compel the plaintiff to have a jury trial of this claim if he chooses to try this claim in a civil action--” it is simply a right that he possesses ․” (964 F.2d at p. 1490, emphasis added.) Put another way, a plaintiff's choice of a court trial of a maritime matter or a Jones Act claim in state court does not convert the action into an admiralty case within exclusive federal court jurisdiction. (See id., at pp. 1485, 1488-1490.)

The city also urges us to find that it has a corresponding right to a jury trial, independent of any right that Peters might have. In Peters's Jones Act case, federal statutory law applicable to personal injury of railway employees applies. (46 U.S.C. § 688(a).) As the Jones Act incorporates the law applicable to personal injuries suffered by railway employees--the Federal Employers' Liability Act (F.E.L.A.)--by reference (Linton v. Great Lakes Dredge & Dock Co., supra, 964 F.2d at p. 1489; see 46 U.S.C. § 688 [Jones Act]), we find guidance in the rulings in F.E.L.A. cases as well as those decisions arising under the Jones Act itself. (see 45 U.S.C. §§ 51-60 [[[[F.E.L.A.]).

In actions brought under the F.E.L.A. in state court, substantive rights are controlled by federal law and procedural matters are controlled by the law of the forum state. (Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 833; see Monessen Southwestern R. Co. v. Morgan (1988) 486 U.S. 330, 335.) The United States and California Supreme Courts have concluded that the right to a jury trial is too substantial a part of the rights accorded by the F.E.L.A. to be classified as a mere procedural right. (Monessen Southwestern R. Co. v. Morgan, id., at p. 336; Dice v. Akron, C. & Y. R. Co. (1952) 342 U.S. 359, 363; Jehl v. Southern Pac. Co., supra, at p. 833.) Also, the Seventh Amendment right to jury trial expressed in the United States Constitution has been held not to apply to actions brought under the F.E.L.A. in state court. (Jehl v. Southern Pac. Co., supra, at p. 833; see Minn. & St. Louis R.R. v. Bombolis (1916) 241 U.S. 211, 217-223; Ches. & Ohio Ry. v. Carnahan (1916) 241 U.S. 241, 242.) Thus, the degree to which an issue is governed by federal law turns on the statute, not the Seventh Amendment. (Jehl v. Southern Pac. Co., supra, at p. 834.) We apply these basic principles to this Jones Act case.

The Seventh Amendment does not apply to Jones Act cases brought in state court. (See Jehl v. Southern Pac. Co., supra, 66 Cal.2d at p. 833; see also Minn. & St. Louis R.R. v. Bombolis, supra, 241 U.S. at pp. 217-223; Ches. & Ohio Ry. v. Carnahan, supra, 241 U.S. at p. 242.) The state constitutional right to jury trial does not apply, because the right to a jury trial is an issue of substantive law that turns on federal law alone. (Soucie v. Trautwein Bros. (1969) 275 Cal.App.2d 20, 24 [federal substantive law applies in Jones Act cases tried in state court]; see Monessen Southwestern R. Co. v. Morgan, supra, 486 U.S. at p. 336 [[[[F.E.L.A. case]; Dice v. Akron, C. & Y. R. Co., supra, 342 U.S. at p. 363 [F.E.L.A. case]; Jehl v. Southern Pac. Co., supra, at p. 833 [[[[F.E.L.A. case].) The right to a jury trial under the Jones Act is a statutory right. (Rachal v. Ingram Corp. (5th Cir. 1986) 795 F.2d 1210, 1216; accord, Linton v. Great Lakes Dredge & Dock Co., supra, 964 F.2d at pp. 1485, 1490.) The Jones Act grants only the plaintiff the right to a jury trial. (Rachal v. Ingram Corp., supra, 795 F.2d at pp. 1212, 1215 [[[[affirming trial court decision to grant plaintiff's motion to strike jury trial demand]; accord, Linton v. Great Lakes Dredge & Dock Co., supra, 964 F.2d at pp. 1485, 1490.) The Jones Act defendant possesses no corresponding right to a jury trial. (Id., at p. 1490.) Peters had the right to waive a jury trial in this matter. He did so. The city has no right--dependent or independent--to a jury trial in this matter. Thus, the trial court did not err when it conducted a court trial of this matter.2

III. SUBSTANTIAL EVIDENCE

A. Negligence

Next, the city challenges the evidence supporting the trial court's finding of negligence. When findings are attacked for insufficiency of evidence, our power begins and ends with a determination of whether there is any substantial evidence to support them. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn from them. (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370, disapproved on another point in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2; Bravo v. Buelow (1985) 168 Cal.App.3d 208, 211.)

The city contends that there is no evidence to support the court's conclusion that its negligence led to this accident. This argument ignores important legal principles that apply to Jones Act cases. The duty of a Jones Act employer is broader than that of an ordinary employer. (Interocean S.S. Co. v. Topolofsky (6th Cir. 1948) 165 F.2d 783, 784.) It includes duties to provide a safe place to work, qualified supervision and suitable equipment. (Spinks v. Chevron Oil Company (5th Cir. 1975) 507 F.2d 216, 223; see Bobb v. Modern Products, Inc. (5th Cir. 1981) 648 F.2d 1051, 1057-1058.) The seaman does not bear the burden of selecting the proper tools. (Street v. Isthmian Lines, Inc. (2d Cir. 1963) 313 F.2d 35, 38.) The standard of care is so heavily weighted in the seaman's favor that even the slightest negligence on the employer's part constitutes Jones Act negligence. (Ferguson v. Moore-McCormack Lines (1957) 352 U.S. 521, 523; see Johnson v. Offshore Exp., Inc. (5th Cir. 1988) 845 F.2d 1347, 1352, cert. den. 488 U.S. 968.)

In its statement of decision, the trial court found that city did not provide Peters with safe and suitable equipment to do this job and that neither Peters nor his supervisor was experienced in this type of work. It found that the city should not have attempted this work without a tugboat and an experienced tugboat crew. Trial testimony supported each of these findings. There was substantial evidence to support each negligence finding.

B. Contributory Negligence

The city also challenges the trial court's finding that Peters did not contribute to his own injury. For contributory negligence to exist, the seaman must have had a duty to act or refrain from acting. (Bobb v. Modern Products, Inc., supra, 648 F.2d at p. 1056.) Under the Jones Act, the seaman's duty to protect himself is slight. (Id., at p. 1057; Spinks v. Chevron Oil Co., supra, 507 F.2d at p. 223.) A seaman has no duty to avoid unsafe tools unless there was a safe alternative available to him. (Tolar v. Kinsman Marine Transit Co. (6th Cir. 1980) 618 F.2d 1193, 1195.)

The city's contributory negligence argument hinges on an incorrect legal conclusion--that Peters was responsible for his own injuries because he selected the wrong tool for the job and because he misused it. The city, not Peters, had the duty to provide suitable equipment. (See Street v. Isthmian Lines, Inc., supra, 313 F.2d at p. 38.) The trial court found that Peters used the only tools available and that the city should have used a tugboat instead. Trial testimony supported these findings. There was sufficient evidence to support the trial court's finding that Peters was not contributorily negligent.

IV. EXPERT WITNESS

The city also contends that it was improperly denied the ability to call expert medical, economic and liability witnesses. In December 1988 responses to interrogatories, Peters stated that his injury might require him to change professions. In January 1991, Peters filed an at-issue memorandum claiming $10,000 in medical expenses, $25,737 in past income loss and $15,000 in future income loss. On November 25, 1991, Peters told the city that he would be claiming a permanent disability. At that time, the trial was to begin on December 16, 1991.

The city deposed Peters's physician on December 10, 1991. Six days later, the city moved to continue the trial date in order to conduct further discovery. The trial date was continued to April 20. Soon after, trial was continued again, this time to May 4.

At the city's request, Peters was examined by Dr. Richard Schneider in March. On April 22, the city moved to augment its expert witness list to add Dr. Schneider. The next day, counsel for the city moved to withdraw and the motion was granted. On April 24, substitute counsel appeared at a hearing on a third motion to continue the trial, to allow him time to prepare for trial. The trial was continued to August 3, but the court--at Peters's request--ordered discovery to remain closed. The city's new counsel was unaware of the pending motion to augment the expert witness list and later argued that when Peters asked that discovery remain closed without disclosing that this motion was pending, he misled both court and opposing counsel.

Peters opposed the city's motion to augment its expert witness list on the ground that discovery had been closed. In May, the motion to augment was denied. The city moved for reconsideration of this ruling. In July, the motion was denied by a judge pro tempore and the city was sanctioned $1,000 for lack of substantial justification for the motion.

Despite these rulings, the city served a list of expert witnesses intended to be called at trial that included Dr. Schneider. Peters filed a motion in limine to exclude his testimony. The city also moved in limine for a ruling allowing it to augment its expert trial witness list to add Dr. Schneider. The trial court denied the city's motion and granted that of Peters's. Schneider did not testify at trial.

The city repeats the arguments that it made again and again at trial--that Peters's November 1991 claim that he was permanently disabled was the first indication the city had ever had that this was possible. This argument ignores Peters's responses to interrogatories suggesting a permanent disability three years earlier. Subsequent events suggest that the city--then represented by other counsel--did not conduct adequate discovery before the original trial date. We may infer from its ruling that the trial court was not persuaded that the city received late notice of the possibility of a claim of permanent disability.

On the motion of a party who has engaged in a timely exchange of expert witness information, the trial court has discretion to grant leave to augment that party's expert witness list. (Code Civ. Proc., § 2034, subd. (k).) The record suggests that the city's initial exchange of expert witness information was not made in a timely fashion. Even if we assume arguendo that the exchange was timely, we are satisfied that the trial court's failure to grant leave would have been an act within its discretion. (See ibid. [trial court may grant leave to augment].)

V. SEAMAN'S STATUS

Finally, the city contends that Peters should have been required to present a prima facie case of “seaman's status” under the Jones Act. In March, the city--then represented by its original counsel--stipulated that it had not previously opposed Peters's motion for summary adjudication of his seaman's status under the Jones Act. It also stipulated that it would not oppose this motion if the court reinstated it. The motion was granted in April. When this issue was renewed by the city's substituted counsel as the August trial was to begin, the court would not permit the city to relitigate this issue.

The trial court's ruling was proper. The motion for summary adjudication completely disposed of the affirmative defense that Peters was not a “seaman” within the protection of the Jones Act. (See Code Civ. Proc., § 437c, subd. (f)(1).) Once a motion for summary adjudication has been granted, the issue pertaining to the affirmative defense is deemed to have been established. (See id., § 437c, subd. (m)(1).) The trial court did not err when, at trial, it refused to reopen this issue.

VI. PREJUDGMENT INTEREST

In his cross-appeal, Peters contends that the trial court erred in refusing to award him prejudgment interest on his entire wage loss award. In its judgment, the trial court awarded Peters $21,650 in prejudgment interest on that portion of his total award compensating him for losses already suffered, but found that he was not entitled to prejudgment interest on his award for future loss. However, in its statement of decision, the trial court explained that under federal maritime law, Peters was entitled to prejudgment interest on the entire award. It stated that in federal cases, courts do not distinguish between a seaman's past and future wage losses. The entire stream of income is to be computed and discounted to present value and a seaman is to be awarded prejudgment interest on that discounted sum. (See Jones & Laughlin Steel Corp. v. Pfeifer (1983) 462 U.S. 523, 538, fn. 22 [setting out this formula]; see McCrann v. United States Lines, Inc. (2d Cir. 1986) 803 F.2d 771, 773-774 [applying this formula].) Thus, the trial court's legal analysis and its actual judgment appear to be inconsistent. We cannot determine which of these two options the trial court intended to adopt. As such, we must remand the matter to the trial court for a new hearing on the issue of prejudgment interest, with directions that the trial court apply the formula set forth in the above-cited federal authorities.

VII. SANCTIONS

Peters also moves for sanctions, contending that the city's appeal is frivolous. We find that, while the appeal was not meritorious, neither was it frivolous. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649.) Thus, we deny the motion for sanctions.

CONCLUSION

The matter is remanded for a new hearing on the issue of prejudgment interest consistent with the directions set forth herein. In all other respects, the judgment is affirmed. The motion for sanctions is denied. Each party shall pay its own costs on appeal.

FOOTNOTES

1.  All dates refer to the 1992 calendar year unless otherwise indicated.

2.  In light of this conclusion, we need not address the issue of prejudice.

REARDON, Associate Justice.

ANDERSON, P.J., and Poché, J., concur.