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Garcia v. Owens-Brockway Glass Container Inc.

United States District Court, C.D. California

July 13, 2017

Jose Manuel Garcia, Jr.,
v.
Owens-Brockway Glass Container Inc.,

          Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES – GENERAL

         Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT (DKT. 29); DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DKT. 36) JS-6: Remanded

         I. Introduction

         Jose Manuel Garcia, Jr. and Jose Perez (“Plaintiffs”) brought this action in the Los Angeles Superior Court against Owens-Brockway Glass Container, Inc. (“Defendant”) asserting claims for negligence. Complaint, Dkt. 1-1. These claims arise out of the substantial injuries that each allegedly sustained while cleaning of a component of the Defendant’s manufacturing facility. Defendant removed the action on March 18, 2016. Dkt. 1.[1] On June 27, 2016, a Scheduling Conference was held, and the last day to amend or add parties was set for August 1, 2016. Dkt. 17. On December 15, 2016, Plaintiffs filed a First Amended Complaint (“FAC”). Dkt. 20. This complaint was subsequently withdrawn, and on January 12, 2017, Plaintiffs filed a Motion for Leave to file a First Amended Complaint. Dkt. 26. This motion was also withdrawn. Dkt. 28. On January 16, 2017, Plaintiffs filed a second Motion for Leave File a First Amended Complaint (“Motion for Leave to Amend”). Dkt. 29. Plaintiffs sought leave to amend the Complaint to add as a defendant USA Waste Management of California, dba Enviroserv (“Enviroserv”). Id. Defendant opposed the motion (“Defendant’s Opposition,” (Dkt. 33)), and Plaintiff replied (“Plaintiff’s Reply”). Dkt. 35.

         On March 8, 2017, Defendant filed a Motion for Summary Judgment (“Motion for Summary Judgment”). Dkt. 36. Plaintiffs opposed it (“Plaintiff’s Opposition” (Dkt. 42)), and Defendant replied (“Defendant’s Reply”). Dkt. 43. A hearing on the Motion for Leave to Amend was held on March 27, 2017. Dkt. 38. At that hearing, the Court stated that it would defer ruling on that motion until at least the time of the hearing on the Motion for Summary Judgment. Id. That hearing took place on June 5, 2017. Dkt. 49. At the conclusion of the hearing, both motions were taken under submission.

         For the reasons stated in this Order, the Motion for Summary Judgment is DENIED IN PART, and the Motion for Leave to Amend is GRANTED.

         II. Background

         A. Factual Background

         Defendant, a manufacturer of glassware, hired Enviroserv to clean the reaction chamber at its Vernon, California facility. Defendant’s Statement of Uncontroverted Facts (“SUF”), Dkt. 36-2 at ¶ 1 (citing Declaration of Ernesto Navarro (“Navarro Decl.”), Dkt. 36-3 at ¶¶ 6-7; Declaration of Deyon Marcello (“Marcello Decl.”), Dkt. 36-4 at ¶ 2; Ex. A to Declaration of Anita Luitel (“Luitel Decl.”), Dkt. 36-5 (e-mails between Defendant and Enviroserv) at 4-6; id. Ex. B (proposal of Enviroserv) at 7-8)). The reaction chamber is a component of the exhaust system of Defendant. Navarro Decl., Dkt. 36-2 at ¶ 1. Its purpose is to scrub sulfur compounds from the gas emissions that result from manufacturing glass. Defendant’s SUF, Dkt. 36-2 at ¶ 5 (citing Navarro Decl., Dkt. 36-2 at ¶¶ 2-4; id. Ex. A (Operating and Maintenance Procedures, SO2 Dry Scrubber System) at 8-22). The reaction chamber includes ductwork. Id. at ¶ 7 (citing Ex. A to Navarro Decl., Dkt. 36-2).

         The scrubbing in the reaction chamber is effected by the release of trona particles into where the contaminated gas has been captured. Id. at ¶ 5 (citing Navarro Decl., Dkt. 36-2 at ¶¶ 2-4; id. Ex. A (Operating and Maintenance Procedures, SO2 Dry Scrubber System) at 8-22). Trona is a naturally occurring mineral that is commonly used in the gas scrubbing process. Navarro Decl., Dkt. 36-3 at ¶ 3. The trona particles react with the sulfur compounds in the gas and are subsequently removed by electrostatic precipitators (“ESPs”). Defendant’s SUF, Dkt. 36-2 at ¶ 5 (citing Navarro Decl., Dkt. 36-3 at ¶¶ 2-4; id. Ex. A (Operating and Maintenance Procedures, SO2 Dry Scrubber System) at 8-22). Above the reaction chamber, a horizontal portion of ductwork (the “Horizontal”) connects to the inlet chute that leads down into the upper section of the reaction chamber. Navarro Decl., Dkt. 36-3 at ¶ 5. A vertical outlet chute (the “Vertical”) leads out of the lower section of the reaction chamber and connects it to the ESPs. Id.

         The reaction chamber has sonic horns that are used to loosen any dust that has become attached to the sides of the chamber. Further Declaration of Ernesto Navarro (“Second Navarro Decl.”), Dkt. 43-3 at ¶ 2. These sonic horns sound approximately once every five to ten minutes. Further Declaration of Deyon Marcello (“Second Marcello Decl.”), Dkt. 43-4 at ¶ 2. They function by creating a vibration that dislodges the dust. Second Navarro Decl., Dkt. 43-3 at ¶ 2. They “are more of a vibration than a sound.” Id. at ¶ 11.

         Over time, excess trona particles build up in the reaction chamber and must be removed. Defendant’s SUF, Dkt. 36-2 at ¶ 8 (citing Navarro Decl., Dkt. 36-2 at ¶¶ 6-7). Enviroserv subcontracted with SB Industrial Vacuum Services, Inc. (“SB Industrial”) to perform this cleaning of the reaction chamber. Id. at ¶ 2 (citing Navarro Decl., Dkt. 36-2 at ¶ 8).

         Both Plaintiffs were employees of SB Industrial. Id. at ¶ 3. (citing Navarro Decl., Dkt. 36-2 at ¶ 8; Ex. B to Declaration of Lance Cidre (“Cidre Decl.”), Dkt. 36-6 (Deposition of Jose Perez (“Perez Depo.”) at 40:3-23); id. Ex. C (Deposition of Plaintiff Jose Garcia, Vol. I (“Garcia Depo. I”) at 71:25- 72:23)). Each is a laborer who has had limited formal education. Plaintiffs’ Separate Statement of Undisputed Facts (“SSUF”), Dkt. 42-1 ¶ 1 (citing Ex. A to Declaration of Joseph Farzam (“Farzam Decl.”), Dkt. 42-6 (Garcia Depo. I) at 24:1-25; 26:17-23). Garcia went to high school and is currently working on his GED. Ex. A to Farzam Decl., Dkt. 42-6 (Garcia Depo. I) at 24:13-25:23). Perez has limited English language skills. Plaintiffs’ SSUF, Dkt. 42-1 at ¶ 4 (citing Ex. B to Farzam Decl., Dkt. 42-7 (Perez Depo.), 122:16-18; 125:20-129:3; 141:12-19). Garcia believed that he was cleaning an oven, not a reaction chamber at the time of the incident at issue in this action. Id.

         Defendant and Enviroserv entered a contract pursuant to which the cleaning would be performed. It is titled “Agreement for Environmental Services” (“Agreement”). Id. at ¶ 10 (citing Ex. C to Luitel Decl., Dkt. 36-5 (Agreement for Environmental Services) at 9-21). The Agreement includes the following provision:

Contractor shall provide all labor, materials, tools, equipment, supervision and subcontracted items necessary for the performance of the Work specified in this Agreement . . . Contractor represents and warrants that its employees, and any other personnel and subcontractors that Contractor provides, are fully qualified, properly trained, and certified or licensed to perform the anticipated scope of Work, and for any Work that involves the . . . handling of hazardous materials or hazardous wastes, such persons are properly trained in procedures to work safely with and perform all services relating to the handling of such materials.

Ex. C to Luitel Decl. Dkt. 36-5 at 6-7.

         The Agreement also provides:

While performing services under this Agreement, Contractor agrees to exercise the degree of care and skill ordinarily exercised under similar circumstances by competent and reputable consultants and members in good standing of the environmental engineering, contracting, consulting and testing professions while performing the types of services to be performed hereunder. Contractor agrees to perform the Work hereunder and shall cause its employees to perform such Work in a safe manner.

Id. at 7.

         A later term of the Agreement states:

Contractor agrees to perform all Work under this Agreement, and Contractor shall cause all of its subcontractors to perform all Work under this Agreement, in compliance with all Applicable Laws and Environmental Laws. Without limiting the generality of the foregoing, Contractor shall specifically comply, and cause all of its subcontractors to comply with OSHA and EPA rules and regulations, including General Industry (29 C.F.R. 1910.1001 Appendix A1), Construction (29 C.F.R. 1926.58 Appendix A2) and the National Emissions Standards for Hazardous Air Pollutants “NESHAP” (40 C.F.R. Part 61) as well as other local, state, provincial or regional laws and regulations Id.

         In connection with the cleaning, Defendant provided Enviroserv with a form titled Confined Space Entry Permit. It required that a supervisor of Defendant complete elements of this permit prior to the commencement of the cleaning of the reaction chamber. Defendant’s SUF, Dkt. 36-2 at ¶ 17 (citing Ex. F to Navarro Decl., Dkt. 36-3 (Confined Space Entry Permit) at 51-52. The permit required that the supervisor evaluate hazards and assess the equipment needed for the cleaning. Id. at ¶ 18 (Ex. F to Navarro Decl., Dkt. 36-3 (Confined Space Entry Permit) at 51-52). The permit was completed by Brian Banuelos, an employee of Enviroserv. Id. at ¶ 19 (citing Navarro Decl., Dkt. 36-3 at ¶¶ 9, 11; id. Ex. F (Confined Space Entry Permit) at 51-52; Marcello Decl., Dkt. 36-4 at ¶ 3). Perez testified that Banuelos was responsible to direct the job on the day of the cleaning that is at issue. Ex. B to Cidre Decl., Dkt. 36-6 (Perez Depo.) at 40:11-21. However, he also testified that Banuelos was only present when he needed to “do the paper.” Ex. B to Farzam Decl., Dkt. 42-7 (Perez Depo.) at 127:9-25.

         Two days before the incident at issue in this action, Defendant prepared the site in its customary fashion. Defendant’s SUF, Dkt. 36-3 at ¶ 21 (citing Navarro Decl., Dkt. 36-3 at ¶ 10; Marcello Decl., Dkt. 36-4 at ¶¶ 5-6; Ex. C to Cidre Decl., Dkt. 36-6 (Garcia Depo. I) at 112:2-5, 132:19-21). This included: placing the scrubbing system on bypass so that neither trona nor gas would flow through the reaction chamber; locking the system control panel to prevent the bypass from being moved and the sonic horns from sounding; locking the separate sonic horn controls; and opening the doors to the reaction chamber and the Vertical to allow the air and materials inside to cool. Id.

         The day before the incident, Plaintiffs and Banuelos were onsite at the Vernon facility in connection with a separate project. Defendant’s SUF, Dkt. 36-2 at ¶ 23 (citing Marcello Decl., Dkt. 36-4 at ¶ 4; Ex. B to Cidre Decl., Dkt. 36-6 (Perez Depo). at 133:25-134:22, 137:5-23, 141:3-15; id. Ex. C (Garcia Depo. I) at 102:1-103:2, 152:19-23). This project also involved handling trona. Id. At that time, Plaintiffs wore personal protective gear, like all visitors to the Vernon facility. Plaintiffs’ SSUF, Dkt. 42-1 at ¶ 9 (citing Ex. B to Farzam Decl., Dkt. 42-7 (Perez Depo.) at 153:16-154:7). This protective gear included full-face respirators, Tyvek suits, steel-toed shoes, construction helmets, earplugs and gloves. Id.

         On January 22, 2016, Deyon Marcello, who is an employee of Defendant, conducted a walkthrough with Banuelos of the area to be serviced. They observed that all of the preparatory actions for the cleaning had been completed. Defendant’s SUF, Dkt. 36-2 at ¶ 24 (citing Marcello Decl., Dkt. 36-4 at ¶ 6). Before work on the reaction chamber started, Marcello and his supervisor, Ernie Navarro, discussed with Banuelos the scope of the work to be performed. Id. at ¶ 25 (citing Navarro Decl., Dkt. 36-3 at ¶ 9; Marcello Decl., Dkt. 36-4 at ¶ 7). During this conversation, Navarro and Marcello recommended that the Vertical be vacuumed from the top down. Id.

         Defendant states that Banuelos directed Plaintiffs to start work. Id. at ¶ 26 (citing Ex. B to Cidre Decl., Dkt. 36-6 (Perez Depo.) at 132:2-14, 150:8-13); id. Ex. C (Garcia Depo. I) at 113:16-21). Both Plaintiffs previously had cleaned this same reaction chamber. Id. at ¶ 28 (Ex. B to Cidre Decl., Dkt. 36-6 (Perez Depo.) at 121:23-122:9, 123:5- 124:13; id. Ex. C (Garcia Depo. I) at 101:15-102:1, 111:19-24, 140:4-9). Defendant states that Plaintiffs had no contact with any personnel of Defendant with respect to the work that they were to perform. Id. at ¶ 27 (citing Navarro Decl., Dkt. 36-3 at ¶ 12; Marcello Decl., Dkt. 36-4 at ¶ 9; Ex. B to Cidre Decl., Dkt. 36-6 (Perez Depo.) at 149:24-150:7, 155:5-11; id. Ex. C (Garcia Depo. I) at 141:1-8, 141:12-18, 172:6-8).

         Plaintiffs state that Banuelos was not present during all of the work they performed. Plaintiffs’ SSUF, Dkt. 42-1 at ¶ 26 (citing Ex. B to Farzam Decl., Dkt. 42-7 (Garcia Depo.) at 181:8-182:2). They also state that both Navarro and Marcello were at the worksite at the time of the cleaning. Id. at ¶ 28 (citing Ex. E to Farzam Decl., Dkt. 42-10 (Navarro Depo.) at 142:8-144:1; id. Ex. F, Dkt. 42-11 (Marcello Depo.) at 49:10-50:4). Navarro testified that he went to the worksite twice during the day of the incident. Ex. E to Farzam Decl., Dkt. 42-10 (Navarro Depo.) at 143:8-25). Marcello testified that he checked on Plaintiffs’ progress once every two hours, which was approximately three to four times during any cleaning like the one at issue. Ex. F to Farzam Decl., Dkt. 42-11 (Marcello Depo.) at 49:19-50:4.

         When Plaintiffs began vacuuming the trona with hoses, it was so hot that it caused them to melt. Plaintiffs’ SSUF, Dkt. 42-1 at ¶ 5 (citing Ex. E to Farzam Decl., Dkt. 42-10 (Navarro Depo.) at 146:13-15; id. Ex. F, Dkt. 42-11 (Marcello Depo.) at 74:12-17; 78:2-3). Plaintiffs then used a metal hoe to dislodge the trona. Id. at ¶ 15 (citing Ex. A to Farzam Decl., Dkt. 42-6 (Garcia Depo.) at 102:1-103-2; id. Ex. B, Dkt. 42-7 (Perez Depo.) at 129:4-25). At the time of the cleaning, there was more trona than normal in both the reaction chamber and the Vertical. Id. at ¶ 6 (citing Ex. F to Farzan Decl., Dkt. 42-11 (Marcello Depo.) at 64:1-13).

         Plaintiffs first vacuumed the bottom section of the reaction chamber, but did not complete their work in that area. They then vacuumed the top section. After completing that work, they resumed vacuuming the bottom section. Defendant’s SUF, Dkt. 36-2 at ¶ 31 (citing Navarro Decl., Dkt. 36-3 at ¶ 14; Ex. B to Cidre Decl., Dkt. 36-6 (Perez Depo.) at 154:22-155:4; id. Ex. C (Garcia Depo. I) at 114:21-115:11, 125:1-17, 126:17-128:12; id. Ex. D (Deposition of Jose Garcia, Vol. II (“Garcia Depo. II”)) at 244:12-246:22, 246:23-247:6; id. Ex. E (Workplace Accident Interview Questionnaire) at 79).

         Plaintiffs’ work involved going inside the reaction chamber to reach the areas that could not be accessed from the outside. Plaintiffs’ SSUF, Dkt. 42-1 at ¶ 17 (citing Ex. A to Farzam Decl., Dkt. 42-6 (Garcia Depo.) at 130:7-134:15). Later in the cleaning process, as Plaintiffs were vacuuming the bottom portion of the Vertical, a section of trona dust that was stuck in the Vertical collapsed. Id. at ¶ 32 (citing Navarro Decl., Dkt. 36-3 at ¶ 14; Ex. B to Cidre Decl., Dkt. 36-6 (Perez Depo.) at 157:2-5; id. Ex. D (Deposition of Jose Garcia, Vol. II (“Garcia Depo. II”)) at 247:17-22, 251:16- 252:15; id. Ex. E (Workplace Accident Interview Questionnaire) at 79). Plaintiffs state that immediately before the collapse, they heard a sound like a vibration or a “little boom.” Plaintiffs’ SSUF, Dkt. 42-1 at ¶ 24 (citing Ex. A to Farzam Decl., Dkt. 42-6 (Garcia Depo.) at 207:21-211:4-8; id. Ex. B, Dkt. 42-7 (Perez Depo.) at 157:6-15); id. Ex. C, Dkt. 42-8 (Declaration of Jose Garcia (“Garcia Decl.”)); id. Ex. D, Dkt. 42-9 (Declaration of Jose Perez (“Perez Decl.”))). Each Plaintiff sustained burn injuries due to the exposure to hot trona.

         The California Department of Industrial Relations Division of Occupational Safety and Health (“Cal-OSHA”) investigated the incident and issued a Notice of No Accident-Related Violation After Investigation. Defendant’s SUF, Dkt. 36-2 at ¶ 35 (Ex. F to Cidre Decl., Dkt. 36-6 (Cal-OSHA notice)).

         B. Procedural Background

         At the June 27, 2016 Initial Scheduling Conference, the deadline for amending pleadings was set for August 1, 2016. Dkt. 17. The fact discovery cut-off was set for March 17, 2017, and the last day to file motions was set for April 24, 2017. Id.

         Defendant served interrogatories and requests for the production of document on Plaintiffs in August 2016. Declaration of Sarah D. Youngblood-Bates (“Youngblood-Bates Decl.”), Dkt. 33-1 at ¶ 4. During that same month, Defendant subpoenaed records from Plaintiffs’ employer. Id. The deposition of Perez took place on September 16, 2016. Id. at ¶ 5. At that time, Perez testified that “Brian,” who worked for Enviroserv, was responsible for directing workers on the day of the incident. Ex. A to Youngblood-Bates Decl., Dkt. 33-1 at 9 (Perez Depo. at 40:8-23). The deposition of Garcia took place on October 7, 2016. Youngblood-Bates Decl. at ¶ 6. Garcia also testified that Brian at “Environmental Services” was the supervisor when the incident took place. Ex. B to Youngblood-Bates Decl., Dkt. 33-1 at 12 (Garcia Depo. at 68:9).

         Plaintiffs served interrogatories and document requests on Defendant on October 21, 2016. Id. at ¶ 12.

         As an additional part of the discovery process, Defendant obtained Workplace Accident Interview Questionnaires from Cal-OSHA. Exs. C and D to Youngblood-Bates Decl., Dkt. 33-1 at 14-34. Garcia and Perez both listed “Brian” from Enviroserv as the contact person at the facility at which the incident occurred. Id. at 14, 24. The questionnaire as to Perez stated that he did not do any testing at the facility prior to the incident “because Brian was supposed to do it.” Ex. C to Youngblood-Bates Decl., Dkt. 33-1 at 16. It also stated, “Brian was in charge but did not talk about hazards.” Id. at 18.

         III. Motion for Summary Judgment (Dkt. 36)

         A. Legal Standards

         A motion for summary judgment will be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). The party seeking summary judgment bears the initial burden to show the basis for its motion and to identify those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See id. Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Where the nonmoving party will have the burden of proof on an issue, however, the movant need only demonstrate that there is an absence of evidence to support the claims of the nonmoving party. See Id. If the moving party meets its initial burden, the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed. R. Civ. P. 56(e).

         Only evidence that can be presented in an admissible form may be considered in connection with a motion for summary judgment. Fed. R. Civ. P. 56(c). In considering such a motion, a court is not to make any credibility determinations or weigh conflicting evidence. All inferences are to be drawn in the light most favorable to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631-32 (9th Cir. 1987). However, conclusory or speculative testimony in declarations or other evidentiary materials is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

         B. Application

         1. Background

         Plaintiffs’ Complaint sets forth a single cause of action. Complaint, Dkt. 1-1. It alleges that Defendant “so negligently maintained, controlled, managed, operated, inspected, and/or supervised [the] premises as to prevent foreseeable workers, such as Plaintiffs, from being exposed to perilous and unsafe conditions.” Id. at ¶ 8. In support of this contention, the Complaint alleges that Defendant “created a dangerous condition and failed to warn Plaintiffs of the condition and further failed to eliminate the danger.” Id. ...


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