Regents of the University of California v. Bernzomatic, et al.,, No. 2:2010cv01224 - Document 53 (E.D. Cal. 2011)
Court Description: ORDER denying 44 Motion for Reconsideration signed by Judge Frank C. Damrell, Jr on 2/10/11. (Matson, R)
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Regents of the University of California v. Bernzomatic, et al., Doc. 53 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ----oo0oo---12 13 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, NO. CIV. 2:10-cv-1224 FCD GGH 14 Plaintiff, 15 v. MEMORANDUM AND ORDER 16 BERNZOMATIC, et al., 17 Defendants. 18 ----oo0oo---19 20 This matter is before the court on defendants Bernzomatic, 21 Irwin Industrial Tool Company, and W. W. Grainger, Inc.’s 22 (collectively, “defendants”) motion for reconsideration of the 23 court’s December 7, 2010, memorandum and order (“order”) denying 24 defendants’ motion for summary judgment. 25 defendants argue undisclosed additional facts support the court’s 26 reconsideration of its denial of defendants’ motion because 27 plaintiff the Regents of the University of California 28 (“plaintiff”) is precluded from bringing suit. Specifically, Plaintiff opposes Dockets.Justia.com For the reasons set forth below,1 defendants’ 1 this motion. 2 motion is DENIED. 3 BACKGROUND 4 This case arises out of injuries suffered by Scott Callaway 5 and James Bartlett (collectively, “the employees”) on September 6 2, 2008, during the course and scope of their employment with 7 plaintiff. 8 While using a Berzomatic MAPP gas canister and Lenox torch tip 9 assembly, the employees suffered burn injuries. (Mem. and Order [“Order”], [Docket # 43], at 2.) (Id.) Plaintiff 10 has paid workers’ compensation benefits to and on behalf of the 11 employees. 12 (Id.) On August 5, 2009, the employees filed a personal injury 13 lawsuit against defendants in state court. (Id. at 3.) 14 Subsequently, the attorneys for the employees and defendants 15 signed a stipulated dismissal with prejudice of the lawsuit. 16 (Id.) 17 On April 5, 2010, plaintiff filed a complaint against 18 defendants in the Superior Court of California, County of Yolo. 19 (Id.) 20 on the basis of federal diversity jurisdiction. 21 On May 19, 2010, defendants removed the case to this court (Id.) On August 13, 2010, defendants filed a motion for summary 22 judgment arguing, inter alia, that plaintiff was precluded from 23 bringing suit under equitable subrogation principles because the 24 employees dismissed their claims with prejudice. 25 The court held that the employees’ voluntary dismissal with (Docket #15.) 26 27 28 1 Because oral argument will not be of material assistance, the court orders the matter submitted on the briefs. E.D. Cal. L.R. 230(g). 2 1 prejudice of their claims against defendants did not bar 2 plaintiff’s lawsuit against defendants because the dismissal 3 served as a release of claims. 4 that although the Labor Code models common law subrogation 5 principles, these principles “must be applied to further the 6 legislative purposes” of ensuring “that the third party is liable 7 for all the wrong his tortfeasance brought about,” including 8 “both the damage to the employee and payments made or required to 9 be made by the employer.” (Order at 9.) The court noted (Order at 6-7) (internal quotations 10 and citations omitted). 11 clear legislative policy militating in favor of reimbursement 12 whenever possible.” 13 4th 369, 377 (2d Dist. 1992)). 14 that the California Labor Code required that plaintiff be given 15 notice and an opportunity to recover the amount of compensation 16 paid to the employees. 17 evidence that either the employees or defendants provided 18 plaintiff notice and because defendants were aware that plaintiff 19 had an interest in the claim, the court held that plaintiff has 20 an independent action against defendant, notwithstanding the 21 employees’ release. 22 defendants’ motion to dismiss. 23 The court further noted that there is “a (Id.) (quoting Abdala v. Aziz, 3 Cal. App. Accordingly, the court concluded (Id. at 9.) (Id. at 9-10.) Because there was no Therefore, court denied (Id. at 12.) On August 30, 2010, the employees filed a complaint for 24 damages against Worthington Industries, Inc. (“Worthington”) in 25 state court. 26 Decl.”), [Docket # 46], filed Dec. 16, 2010.) Defendants in this 27 case were not named in the state suit. Subsequently, on 28 October 28 2010, plaintiff in this case intervened in the (Exh. A. to Decl. of Michael C. Osborne (“Osborne 3 (Id.) 1 employees’ state suit. 2 notice of plaintiff’s intervention in the state suit on October 3 27, 2010. 4 (Id., Exh. B.) Defendants received (Id.) Defendants contend that plaintiff’s intervention in the 5 employees’ state suit is newly discovered evidence and request 6 the court to reconsider its order denying defendants’ motion for 7 summary judgment. 8 [Docket #45], filed Dec. 16, 2010, at 2.) 9 10 (Defs.’ Mot. for Recons. [“Defs.’ Mot.”], STANDARD An order that resolves fewer than all of the claims among 11 all of the parties “is subject to revision at any time before the 12 entry of judgment adjudicating all the claims and the rights and 13 liabilities of all the parties.” 14 Charles Alan Wright & Arthur R. Miller, Federal Practice & 15 Procedure § 4478 (2d Ed. 2005)(while authorized, reconsideration 16 of interlocutory orders disfavored). 17 non-final order is sought, the court has “inherent jurisdiction 18 to modify, alter or revoke it.” 19 F.3d 1042, 1048-49. (9th Cir. 2000) 20 Fed. R. Civ. P. 54(b); 18B Where reconsideration of a United States v. Martin, 226 Absent “highly unusual circumstances,” reconsideration of a 21 final judgment is appropriate only where (1) the court is 22 presented with newly-discovered evidence, (2) the court committed 23 “clear error or the initial decision was manifestly unjust,” or 24 (3) there is an intervening change in the controlling law.2 Sch. 25 26 27 28 2 While the standards applicable to motions for reconsideration of final judgments or orders under Rules 59(e)(final judgments) and 60(b)(final judgments and orders) technically do not delimit the court’s inherent discretion to (continued...) 4 1 Dist. No. 1J, Multnomah County, Or. v. ACandS Inc., 5 F.3d 1255, 2 1263 (9th Cir. 1993); Carroll v. Nakatani, 342 F.3d 934, 945 (9th 3 Cir. 2004). 4 raise arguments or present evidence for the first time when they 5 could reasonably have been raised earlier in the litigation.” 6 Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th 7 Cir. 2000). 8 allegations of newly-discovered evidence bears the burden of 9 demonstrating that the evidence: “(1) is truly newly-discovered; A motion for reconsideration “may not be used to The party moving for reconsideration based on 10 (2) could not have been discovered through due diligence; and (3) 11 is of such material and controlling nature that it demands a 12 probable change in the outcome.” 13 Dist., 134 F. Supp. 2d 1111, 1131 n.45 (E.D. Cal. 2001) (internal 14 citations omitted). 15 16 United States v. Wetlands Water ANALYSIS Defendants argue that the court should reconsider the 17 December 7, 2010 order denying defendants’ motion for summary 18 judgment on the ground that newly-discovered evidence would 19 preclude such a ruling. 20 plaintiff has failed to inform the court that it intervened in a 21 state court lawsuit filed by the employees against the cylinder 22 manufacturer, Worthington. 23 assert that “[p]laintiff now has multiple avenues for double 24 recovery: this action . . . and an entirely separate subrogation 25 action against Worthington in state court.” Specifically, defendants argue that (Defs.’ Mot. at 2.) Defendants (Id.) Accordingly, 26 27 28 2 (...continued) reconsider interlocutory orders, the court nonetheless finds them to be helpful guides to the exercise its discretion. 5 1 defendants argue that “[p]laintiff cannot seek double recovery 2 through an independent claim here . . . because its claim is 3 subrogated to the injured workers’ claim.” 4 v. Price, 29 Cal.3d 923, 928-29 (1981) and Cnty. of San Diego v. 5 Sanfax Corp., 19 Cal.3d 862, 874, n.7 (1977)). 6 (Id. (citing Breese As an initial matter, plaintiff’s intervention in a related 7 state court action is not “new” evidence. Plaintiff intervened 8 in the employees’ state court action on October 28, 2009. 9 (Osborne Decl., Exh. B.) Defendants’ received notice of plaintiff’s intervention on that same day. 11 reply brief was filed on November 11, 2010. 12 Defendants’ supplemental reply was filed on November 24, 2010. 13 (Docket #39.) 14 judgment on December 7, 2010. 15 plaintiff’s intervention in the state court litigation could have 16 reasonably been raised earlier in this litigation, before the 17 court had ruled on defendants’ motion for summary judgment. 18 (Id.) Defendants’ 10 (Docket # 38.) The court denied defendants’ motion for summary (Order at 12.) As such, Further, even if defendants presented “new” evidence, 19 defendants fail to demonstrate that this information demands a 20 probable change in the outcome. 21 more than that it has paid out to the employees, plaintiff may 22 bring action against several defendants in different sovereigns 23 and seek recovery for a single injury. 24 opposition, plaintiff clarifies that it does not seek double 25 recovery. 26 Recons. [“Forino Decl.], [Docket # 50-1], filed Jan. 14, 2011, ¶ 27 6.) While plaintiff may not recover Indeed, in its (Decl. of Brian A. Forino in Opp’n to Defs.’ Mot. for Rather, plaintiff “seeks to be made whole for the workers’ 28 6 1 compensation benefits paid out to its injured employees.”3 2 The court has already recognized plaintiff’s independent right to 3 proceed against defendants notwithstanding the employees’ 4 settlement with defendants, noting the “clear legislative policy 5 militating in favor reimbursement whenever possible.” 6 6-7)(citing Abdala, 3 Cal. App. 4th at 377). 7 (Id.) (Order at Defendants’ reliance on Breese v. Price and Cnty. of San 8 Diego v. Sanfax Corp. is unpersuasive. In Breese, an employer’s 9 workers compensation insurance carrier made payments to the 10 employee after the employee was involved in an automobile 11 accident with the defendant. 12 sued the defendant, the alleged tortfeasor, and the insurance 13 carrier intervened as a plaintiff, seeking reimbursement. 14 Subsequently, the employee and the defendant settled their 15 litigation. 16 carrier could not obtain full reimbursement from the defendant, 17 absent proof that the defendant’s tort liability was equal to or 18 greater than the amount of the settlement. 19 court also noted that whether a plaintiff could succeed on the 20 substantive merits of the claim did not bear on the ability of 21 such plaintiff to bring a claim under California Labor Code §§ 22 3859 et. seq. 23 governing employer and employee actions against third parties do 24 not define the substantive law which determines whether an 25 employee or an employer will in fact recover.”). Id. at 926-27. 29 Cal. 3d at 926. The employee Id. The court held that the insurance Id. at 925-30. The Id. at 928-29 (“The workers compensation statutes Here, plaintiff 26 3 27 28 Further, in plaintiff’s opposition, plaintiff represents that Worthington, the defendant in the state court action, will likely remove the case to this district and that plaintiff thereafter will move to relate these cases. 7 1 does not argue the merits of its damages against defendants, but 2 rather asserts its right to seek reimbursement pursuant to the 3 California workers compensation scheme. 4 Because Breese only limits an employer’s ultimate recovery not an 5 employer’s right to bring action against a defendant, Breese is 6 unpersuasive. (Decl. Forino. ¶ 6.) 7 Similarly, the facts before the court in Sanfax are 8 distinguishable from the facts before the court in this case. 9 Sanfax, the court held that an employer’s action was time-barred In 10 because an action under California Labor Code section 3852 is a 11 tort action subject to a limitations period running from the date 12 of the employee’s injury. 13 conclusion, the court explained that employee and employer third- 14 party actions are interchangeable, in part to avoid the potential 15 for double recovery from a third party tortfeasor. 16 73. 17 double recovery, when “the damages which the employee recovers 18 from a third party simply duplicates the benefits which the 19 employee has already received from the employer, the employee’s 20 own recovery provides a fund from which the employer may draw.” 21 Id. 22 is not possible with respect to defendants in this case. 23 employees have not recovered from defendants; rather, they 24 voluntarily dismissed their state court suit without notice to 25 plaintiff. 26 recovered from defendants and because plaintiff’s damages take 27 the form of the employees’ alleged share of damages against 28 defendants, there is no risk of double recovery merely because 19 Cal. 3d at 871. In support of its Id. at 872- The court further explained that in order to avoid such However, the type of double recovery referred to in Sanfax (Order at 3.) The Because the employees have not 8 1 plaintiff has intervened in a state court suit involving a wholly 2 different defendant. 3 CONCLUSION 4 Based on the foregoing analysis, defendants’ motion for 5 reconsideration of the court’s December 10, 2010 order denying 6 defendants’ motion for summary judgment is DENIED. 7 8 IT IS SO ORDERED. DATED: February 10, 2011 9 10 11 FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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