Syrek v. Anheuser-Busch

Filed 1/17/07  Syrek v. Anheuser-Busch CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

          APPEAL from a judgment of the Superior Court of Los Angeles County, Richard B. Wolfe, Judge.  Affirmed.

          Gary Rand and Suzanne E. Rand-Lewis for Plaintiffs and Appellants.

          Manning, Marder, Kass, Ellrod & Ramirez, Anthony J. Ellrod and Kevin H. Louth for Defendant and Respondent.

INTRODUCTION

          Plaintiff Julie Syrek was injured in the course and scope of her employment with Anheuser-Busch, Inc. while working in the factory's bottling department.  The accident occurred when she attempted to clean the glue bowl on the Topmatic machine that applied labels to beer bottles.  The Topmatic is manufactured by Krones, Inc. (Krones).  As a result of the accident, plaintiff lost part of one finger. 

          Plaintiff  filed a worker's compensation claim.  In addition, plaintiff and her husband Todd Syrek,[1] filed a personal injury action against, inter alia, Anheuser-Busch, Inc. and Krones.  Plaintiff sued for negligence and products liability; Todd sued for loss of consortium.  Anheuser-Busch, Inc. (hereafter defendant) filed an answer, alleging multiple defenses including the exclusivity provisions of the worker's compensation law. 

          Defendant moved for summary judgment, urging that plaintiff's sole remedy lay in the worker's compensation system.  The summary judgment litigation focused on whether there was a triable issue of fact that the Topmatic was a power press within the meaning of Labor Code section 4558.[2]  If it was, plaintiff could maintain her civil action against defendant, because there was evidence defendant had removed a point of operation guard from the machine.  The trial court concluded that as a matter of law the labeling machine was not a power press.  It also found that the products liability cause of action lacked merit, because even though defendant had modified the Topmatic for use by its employees, it had not placed the modified machine on the market.  Because Todd's consortium cause of action was derivative of plaintiff's other claims, the court found that it also lacked merit.  The trial court therefore entered judgment in favor of defendant on the entire complaint.[3] 

          On appeal, plaintiff primarily contends that there was a triable issue of material fact whether the Topmatic was a power press.  Secondarily, she contends that summary judgment was improper because defendant allegedly engaged in discovery abuses, the trial court erred in overruling plaintiff's objections to the declaration of defendant's expert, and triable issues of fact exist on the products liability claim.  Todd concedes that the cause of action for loss of consortium is derivative of plaintiff's right to otherwise sue defendant.  We reject all of plaintiff's claims of error and therefore affirm the judgment.

FACTUAL BACKGROUND OF THE SUMMARY JUDGMENT MOTION

1.  Defendant's Summary Judgment Motion

          To establish that the labeling machine was not a power press, defendant submitted, inter alia, the instruction manual for the Topmatic published by Krones.  The manual, after describing how the bottles first entered the machine, explained the label transfer process as follows:  â€