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The Regents of the University v. Memorandum and Order

December 7, 2010


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

----oo0oo----This matter is before the court on defendants Bernzomatic,*fn1 Irwin Industrial Tool Company, and W.W. Grainger, Inc.'s (collectively, "defendants") motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn2 For the reasons set forth below,*fn3 defendants' motion for summary judgment is DENIED.


This case arises out of injuries suffered by Scott Callaway ("Callaway") and James Bartlett ("Bartlett") on September 2, 2008, during the course and scope of their employment with plaintiff. (PUF ¶ 1-2.) Callaway and Bartlett were using a BernzOmatic MAPP gas canister and Lenox torch tip assembly. (PUF

¶ 2.) Specifically, the assembly has been identified as a Lenox branded Bernzomatic torch with a MAPP gas cylinder, bearing a Bernzomatic label ("the Bernzomatic product"). (PUF ¶ 3.) In the course of using the Bernzomatic product, Callaway and Bartlett suffered burn injuries. (PUF ¶ 4.) Plaintiff has paid workers' compensation benefits to and on behalf of Callaway and Bartlett. (PUF ¶ 5.) At the time plaintiff filed its opposition to defendants' motion for summary judgment, plaintiff had expended $32,938.07 in benefits for the treatment of Bartlett's injuries and $134,524.48 in benefits for the treatment of Callaway's injuries. (PDF ¶ 5.)

Plaintiff also filed numerous objections to defendants' evidence. The court has reviewed the filings and concludes that the evidence objected to is either irrelevant to the court's determination or the objections are otherwise without merit. Accordingly, the objections are OVERRULED.

On August 5, 2009, Callaway and Bartlett filed a personal injury lawsuit against defendants. (PUF ¶ 6.) Subsequently, counsel for Callaway and Bartlett contacted defendants' counsel, stating that their expert witness had established that the Bernzomatic product was not defective in design or manufacture and, therefore, that they were going to dismiss the action.*fn5

(PUF ¶ 7.) A stipulated dismissal with prejudice of the lawsuit was signed by attorneys for Callaway and Bartlett and for defendants and filed on January 4, 2010. (PUF ¶ 8.) The stipulated dismissal provided that "each party shall bear its own costs and attorneys' fees in connection with the lawsuit and the negotiation and preparation of this Stipulation Dismissal." (Ex. B to Decl. of Michael C. Osborne ("Osborne Decl."), filed Aug. 13, 2010.)

On April 5, 2010, plaintiff filed a complaint against defendants in the Superior Court of California, County of Yolo. Defendants were served on April 20, 2010. On May 19, 2010, defendants removed the case to this court on the basis of federal diversity jurisdiction.


The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.

Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). /////


Plaintiff brings suit for recovery of workers' compensation benefits under California Labor Code ยง 3582 et seq. Defendants move to dismiss, arguing that (1) plaintiff is precluded from bringing suit under equitable subrogation principles because Bartlett and Callaway dismissed their ...

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