L & S Framing Inc. v. Cal. Occupational Safety & Health Appeals Bd.

Docket NumberC096386
Decision Date29 June 2023
PartiesL & S FRAMING INC., Plaintiff and Appellant, v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, Real Party in Interest and Respondent.
CourtCalifornia Court of Appeals Court of Appeals

Certified for Publication 7/24/23

APPEAL from a judgment of the Superior Court of Placer County, No SCV0046603 Trisha J. Hirashima, Judge. Affirmed.

Donnell, Melgoza & Scates LLP, Manuel M. Melgoza for Plaintiff and Appellant.

J Jeffrey Mojcher, Aaron R. Jackson, F. Elizabeth Clarke and Vincent Mersich for Respondent California Occupational Safety and Health Appeals Board.

Denise M. Cardosa, Deborah A. Bialosky and Clara Hill-Williams for Real Party in Interest and Respondent California Department of Industrial Relations.

HORST J. [*]

On August 20, 2016, Martin Mariano, an employee of plaintiff L &S Framing Inc., was working on a residential house under construction when he fell from the second floor onto the concrete ground floor below, sustaining serious injuries. Following an investigation, real party in interest California Department of Industrial Relations' Division of Occupational Safety and Health (the Division) issued a notice of intent to cite plaintiff and subsequently issued a citation, which eventually included a serious accident-related citation for violation of California Code of Regulations, title 8, section 1626, subdivision (b)(5). [1] Plaintiff appealed the citation. An administrative law judge (ALJ) denied the Division's mid-hearing request to amend the citation to allege a violation of section 1632, subdivision (b)(1), denied the Division's post-hearing motion to amend to allege violation of section 1626, subdivision (a)(2), and concluded the Division failed to prove the alleged violation of section 1626, subdivision (b)(5). The Division filed a petition for reconsideration with the defendant California Occupational Safety and Health Appeals Board (the Appeals Board). The Appeals Board concluded the ALJ improperly denied the two requests to amend and upheld the citation based on violation of both section 1632, subdivision (b)(1) and 1626, subdivision (a)(2). Plaintiff filed a petition for a writ of mandate in the trial court, the trial court denied the petition, and plaintiff appeals.

Plaintiff asserts the trial court (1) erred in permitting the Appeals Board to amend the citation, (2) incorrectly concluded sections 1632, subdivision (b)(1) and 1626, subdivision (a)(2) applied, and (3) incorrectly concluded section 1716.2 did not apply and did not supersede the other regulations on the facts of this case. The second and third of these contentions depend on the seemingly simple question whether the specific location from which Mariano fell qualified as a floor opening (§ 1632, subd. (b)(1)) and/or a stairwell (§ 1626, subd. (a)(2)), or instead an "unprotected side[] or edge[]" (§ 1716.2, subd. (f)).

We affirm. We conclude the Appeals Board properly allowed the Division to amend the citation, the Appeals Board reasonably deemed the location at issue to fall within the scope of sections 1632 subdivision (b)(1) and 1626, subdivision (a)(2) and that determination was supported by substantial evidence, and the Appeals Board properly determined section 1716.2 did not apply.

BACKGROUND
The Accident

On August 20, 2016, plaintiff's employees were working in a subdivision called Highland Grove. Mariano worked for plaintiff and was on the crew working on unit number 49. At that location, a stairway had been built from the ground floor to the second floor. The U-shaped stairway consisted of three segments of stairs. The first segment was to the right as one entered the front door and led part way up from the ground floor. The second segment turned 90 degrees to the left of the first and continued upwards. The third again turned 90 degrees to the left and continued upward until it connected with the second floor. The lowest segment of stairs starting on the ground floor abutted the wall containing the entry door. As they constructed the stairs, plaintiff's employees also built wooden railings. After the floor on the second floor was covered with plywood decking, but before exterior walls were erected, workers assembled wooden railings around the open edges.

At the top of the stairs on the second floor, there was an L-shaped floor space leading away from the stairs and then perpendicularly 90 degrees to the left. Wooden railings or handrails on each of the two sides were erected after the flooring was put down, one along the landing at the stop of the stairs and another extending perpendicularly to the left for several feet until it met the framing of a wall. But for the railing extending to the left, the floor would have led into an open space above the interior area of the house's ground floor. At least one witness referred to that railing alternately as a railing and a wall. [2] Testimony indicated that, at some point, that railing was to be replaced with, or perhaps completed as, a short interior wall approximately 36 inches high. Once completed, one would be able to see the house's "volume ceiling" from the second-floor "bonus room" over that short wall.

On the day of the accident, Mariano was on the second floor doing wall installation. The workers removed the railing or handrail that was where the short wall would ultimately be erected because they were working on an exterior wall which they had to lay down on the floor of the bonus room in order to work on it. It would not fit on the floor with the handrail in place.

Mariano was "chalking the strap line with his back towards the unguarded stairwell (inaudible) and he fell to the [first] floor." Mariano fell 10 feet four inches to the concrete floor on the ground floor below. He sustained a brain injury characterized as a serious injury.

The Division Issues Citations

Ronald Aruejo, a senior safety engineer for the Division, issued plaintiff three general citations and one serious accident-related citation. Only the serious accident-related citation is at issue here.

Before issuing the serious accident-related citation, Aruejo sent a notice of intent. The notice of intent, Cal/OSHA form 1BY (1BY), cited an alleged violation of one of the Division's Construction Safety Orders. (§ 1502 et seq.) Specifically, the 1BY alleged a violation of section 1626, subdivision (a)(2), although it also stated the alleged violation "may be cited as a violation" of that section "or any other applicable regulation." The 1BY recited, in part: "[T]he employer did not provide railings and toe boards meeting the requirements of Article 16 around the stairwell of a story [sic] residential building under construction. As a result, an employee was seriously injured when he fell from the open side of the stairwell and landed approximately 11 feet below onto a concrete floor."

The subsequent citation itself set forth the following: "[T]he employer did not provide the exposed sides of a stairway with temporary railings and toe board as prescribed in Section 1620. As a result, an employee was seriously injured when he fell from the exposed side of the stairway and landed approximately 11 feet below onto a concrete floor." The citation cited section 1626, subdivision (a)(5). According to Aruejo, the language in the citation was from section 1626, subdivision (b)(5), and the reference to a nonexistent subdivision (a)(5) was a typographical error. The citation sets forth verbatim the language appearing in section 1626, subdivision (b)(5). That subdivision provides: "Unprotected sides and edges of stairway landings shall be provided with railings. Design criteria for railings are prescribed in Section 1620 of these safety orders." (§ 1626, subd. (b)(5).)

Plaintiff appealed the citation. A hearing before an ALJ followed. The hearing occurred over four days, November 14 and 15, 2017, and September 5 and 6, 2018.

On the first day of the hearing, the ALJ granted the Division's request to amend the citation to refer to section 1626, subdivision (b)(5) rather than nonexistent subdivision (a)(5). In July 2018, the Division moved to amend the citation to allege, in the alternative, a violation of section 1632, subdivision (b)(1). That section provides: "Floor, roof and skylight openings shall be guarded by either temporary railings and toeboards or by covers." (§ 1632, subd. (b)(1).) The ALJ denied the motion.

In its post-hearing brief, the Division again sought to amend the citation, this time to conform to the evidence and allege violation of section 1626, subdivision (a)(2). That section provides: "Railings and toeboards meeting the requirements of Article 16 of these safety orders shall be installed around stairwells." (§ 1626, subd. (a)(2).) The Division asserted: "[T]he Division's 1BY notice cited [plaintiff] for a violation of section 1626[, subdivision](a)(2) and [plaintiff] has argued vigorously that the unprotected edge was not a stairwell. [Citation.] Thus, [plaintiff] had an opportunity to defend itself against this allegation and cannot claim surprise." The Division also argued the 15-foot trigger height for fall protection in section 1716.2 did not apply to interior unprotected sides and edges.

The ALJ's Determination

The ALJ determined the Division failed to establish plaintiff violated section 1626, subdivision (b)(5), finding that section inapplicable to the circumstances. Accordingly, the ALJ dismissed the citation and vacated the penalty. The ALJ also denied the Division's post-hearing request to amend the citation to conform to the proof and to allege a violation of section 1626, subdivision (a)(2).

The Appeals Board's Decision After...

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