California Court of Appeals, Third District, Placer
APPEAL from a judgment of the Superior Court of Placer County, No. S-CV-0026760 Colleen M. Nichols, Judge.
[Copyrighted Material Omitted]
Larry Lockshin and Jennifer Marsh for Plaintiff and Appellant.
Hansen, Kohls, Sommer & Jacob, Daniel V. Kohls and Christine E. Jacob for Defendant and Respondent.
Plaintiff Michael Yanez sued his former employer, Union Pacific Railroad Company (Union Pacific), for wrongful discharge, as well as Union Pacific’s in house counsel, Brian Plummer, for legal malpractice, breach of fiduciary duty, and fraud.
Union Pacific fired Yanez for dishonesty, citing a discrepancy between a witness statement tat Yanez wrote and a deposition answer he gave concerning a coemployee’s on-the-job injury (the deposition answer occurred in the coemployee’s lawsuit against Union Pacific under the Federal Employers Liability Act (FELA; 45 U.S.C. § 51 et seq.)). At the deposition, Plummer represented both Union Pacific and Yanez. Yanez claims the alleged dishonesty was a simple miswording in his witness statement that Plummer, during the deposition, manufactured into something sinister for Union Pacific’s benefit.
Plummer moved successfully for summary judgment, claiming that Yanez could not meet the causation element of Yanez’s three causes of action against him. We reverse, concluding that Yanez has raised a triable issue of material fact that but for Plummer’s conduct, Union Pacific would not have fired Yanez.
The summary judgment papers contain the following evidence. Because a successful summary judgment motion denies the losing party a trial, the papers of the moving party are strictly construed while those of the losing party are liberally construed. (Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627 [35 Cal.Rptr.2d 238].)
Accident and Witness Statements
On September 6, 2008, Yanez was working with another Union Pacific machinist, Robert Garcia, in replacing locomotive motors. An elevator-like device known as a “drop table” is used to raise the motors from the “drop pit” over which the locomotive is situated; Yanez was operating the drop table when Garcia went into the drop pit to retrieve a tool, fell, and was injured.
As the only percipient witness to Garcia’s accident, Yanez wrote two witness statements, one shortly after it occurred (hereafter first statement) and a longer second statement about an hour later (hereafter second statement).
The first statement was requested by Union Pacific day shift supervisor Shawn Orr, and provided: “I Michael Yanez was working on the UP 5566 [locomotive] on drop table #2 with Boby Garcia, we were going outside to raise #5 T/M [locomotive motor]. Boby had droped a socket down into pit & said he would go get it while I was raising motor outside I was watching motor come up while Boby went downstairs & went to retrieve tool had sliped & fell on concrete floor, soaked in oil & grease.” (Italics added.)
Leo Marin, second in command at the Union Pacific facility, then told Yanez to write a second statement because the first statement lacked details. The second statement provided: “I Michael Yanez was working on the UP 5566 [locomotive] on drop table #2 with Boby Garcia. We were going up with T/M [locomotive motor] outside. Boby had told me he had droped a
socket & was going to retrieve it. I was looking down at motor coming up, but I could see Boby going downstairs & he walked out on concrete floor. I saw Boby slip & fall down on oil soaked floor, he was lying on his back when I came downstairs to help him up, he complainde of his knee & back hurt. I ...