                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 18 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GILBERT MORENO; et al.,                          No. 08-56813

              Plaintiffs - Appellants,           D.C. No. 3:06-cv-02196-DMS-
                                                 PCL
  v.

ALSTOM POWER, INC; et al.,                       MEMORANDUM *

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                           Submitted February 12, 2010 **
                               Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, *** Chief
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
        Gilbert and Angela Moreno appeal the district court’s summary judgment in

favor of Mr. Moreno’s former employer, United States Gypsum Company

(“USGC”), in the Morenos’ diversity action seeking to recover for personal

injuries suffered by Mr. Moreno in an industrial accident. We affirm. Because the

factual and procedural background is familiar to the parties, we need not recount it

here.

        The district court properly granted summary judgment. Ordinarily, when an

employee is injured in the course and scope of his employment, the Workers’

Compensation Appeals Board provides the only forum for relief. Cal. Lab. Code §

3602. However, California Labor Code section 4558 contains an exception to the

general rule. If the injury is “proximately caused by the employer’s knowing

removal of, or knowing failure to install, a point of operation guard on a power

press, and this removal or failure to install is specifically authorized by the

employer under conditions known by the employer to create a probability of

serious injury or death,” the employee is not limited by Section 3602 and may

bring his claim in a court of law. Cal. Lab. Code § 4558(b). Plaintiff contends that

his injury falls within the ambit of Section 4558. We disagree.

        Mr. Moreno’s injury did not result from the removal of, or the failure to

install, a point of operation guard on a power press. The pulley and conveyor belt


                                            2
assembly on which Mr. Moreno was injured is not a “power press” within the

meaning of section 4558(b). Section 4558 defines power press as “any material-

forming machine that utilizes a die which is designed for use in the manufacture of

other products.” Cal. Lab. Code § 4558(a)(4). A “die” is a “tool that imparts

shape to material by pressing or impacting against or through the material, that is,

by punching, stamping, or extruding.” Rosales v. Deputy Ace Medical Co., 22

Cal.4th 279, 285 (2000). Moreno argues that the conveyor belt assembly

constitutes a “power press” because the conveyor belt, taper band and edge shoes

impart shape to the edges of the wallboard as it moves down the conveyor belt.

However, neither the conveyor belt nor the taper band and edge shoes impart shape

by “punching, stamping, or extruding” force upon the wallboard, and thus cannot

constitute a “die” within the meaning of section 4558.

      Moreno also argues that the head pulley is a “die” because buildup on the

pulley causes imperfections to be “stamped” onto the wallboard. However, the

pulley does not directly stamp imperfections onto the wallboard. Rather, buildup

on the pulley causes a bump in the conveyor belt which, in turn, creates blemishes

in the wallboard. The pulley itself does not place any direct force onto the

wallboard and thus cannot constitute a “die.” See id.




                                          3
       Moreover, even assuming the conveyor belt assembly can be considered a

“power press,” Mr. Moreno was not injured as a result of the removal of, or failure

to install, a point of operation guard. We assume without deciding that plaintiffs

correctly define “point of operation” as “the point where the workpiece [the

wallboard] and the forming apparatus [the die] come together so that the workpiece

can be formed by the forming apparatus.” Mr. Moreno alleges that his accident

was caused by the removal of the guard for the assembly’s head pulley. The head

pulley is located beneath the conveyor belt at a substantial distance from the point

on the belt where the wallboard is “formed.” Because the head pulley is not at the

assembly’s “point of operation,” the removal of the guard for the head pulley – the

alleged cause of Mr. Moreno’s injuries – does not constitute the removal of a

“point of operation” guard.

       Because the statutory exception does not apply, the district court properly

concluded that the exclusive remedy provisions of the Workers’ Compensation Act

preclude relief in this case.




       AFFIRMED.




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