FILED
NOT FOR PUBLICATION FEB 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GILBERT MORENO; et al., No. 08-56813
Plaintiffs - Appellants, D.C. No. 3:06-cv-02196-DMS-
PCL
v.
ALSTOM POWER, INC; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted February 12, 2010 **
Pasadena, California
Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, *** Chief
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
Gilbert and Angela Moreno appeal the district court’s summary judgment in
favor of Mr. Moreno’s former employer, United States Gypsum Company
(“USGC”), in the Morenos’ diversity action seeking to recover for personal
injuries suffered by Mr. Moreno in an industrial accident. We affirm. Because the
factual and procedural background is familiar to the parties, we need not recount it
here.
The district court properly granted summary judgment. Ordinarily, when an
employee is injured in the course and scope of his employment, the Workers’
Compensation Appeals Board provides the only forum for relief. Cal. Lab. Code §
3602. However, California Labor Code section 4558 contains an exception to the
general rule. If the injury 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,” the employee is not limited by Section 3602 and may
bring his claim in a court of law. Cal. Lab. Code § 4558(b). Plaintiff contends that
his injury falls within the ambit of Section 4558. We disagree.
Mr. Moreno’s injury did not result from the removal of, or the failure to
install, a point of operation guard on a power press. The pulley and conveyor belt
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assembly on which Mr. Moreno was injured is not a “power press” within the
meaning of section 4558(b). Section 4558 defines power press as “any material-
forming machine that utilizes a die which is designed for use in the manufacture of
other products.” Cal. Lab. Code § 4558(a)(4). A “die” is 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. Deputy Ace Medical Co., 22
Cal.4th 279, 285 (2000). Moreno argues that the conveyor belt assembly
constitutes a “power press” because the conveyor belt, taper band and edge shoes
impart shape to the edges of the wallboard as it moves down the conveyor belt.
However, neither the conveyor belt nor the taper band and edge shoes impart shape
by “punching, stamping, or extruding” force upon the wallboard, and thus cannot
constitute a “die” within the meaning of section 4558.
Moreno also argues that the head pulley is a “die” because buildup on the
pulley causes imperfections to be “stamped” onto the wallboard. However, the
pulley does not directly stamp imperfections onto the wallboard. Rather, buildup
on the pulley causes a bump in the conveyor belt which, in turn, creates blemishes
in the wallboard. The pulley itself does not place any direct force onto the
wallboard and thus cannot constitute a “die.” See id.
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Moreover, even assuming the conveyor belt assembly can be considered a
“power press,” Mr. Moreno was not injured as a result of the removal of, or failure
to install, a point of operation guard. We assume without deciding that plaintiffs
correctly define “point of operation” as “the point where the workpiece [the
wallboard] and the forming apparatus [the die] come together so that the workpiece
can be formed by the forming apparatus.” Mr. Moreno alleges that his accident
was caused by the removal of the guard for the assembly’s head pulley. The head
pulley is located beneath the conveyor belt at a substantial distance from the point
on the belt where the wallboard is “formed.” Because the head pulley is not at the
assembly’s “point of operation,” the removal of the guard for the head pulley – the
alleged cause of Mr. Moreno’s injuries – does not constitute the removal of a
“point of operation” guard.
Because the statutory exception does not apply, the district court properly
concluded that the exclusive remedy provisions of the Workers’ Compensation Act
preclude relief in this case.
AFFIRMED.
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