Ventura Coastal, LLC v. Occupational Safety & Health Appeals Bd.

• Decision Date: 01 December 2020
• Docket Number: F077267
• Citation: 272 Cal.Rptr.3d 185,58 Cal.App.5th 1
• Court: California Court of Appeals Court of Appeals
• Parties: VENTURA COASTAL, LLC, Plaintiff and Appellant, v. OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; Department of Industrial Relations, Division of Occupational Safety and Health, Real Party in Interest and Respondent.

58 Cal.App.5th 1

272 Cal.Rptr.3d 185

VENTURA COASTAL, LLC, Plaintiff and Appellant,

v. OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent;Department of Industrial Relations, Division of Occupational Safety and Health, Real Party in Interest and Respondent.

F077267

Court of Appeal, Fifth District, California.

Filed December 1, 2020

Lebeau-Thelen, Daniel K. Klingenberger, Kelly A. Lazerson and Patrick Charles Carrick, Bakersfield, for Plaintiff and Appellant.

J. Jeffrey Mojcher, Sacramento, Aaron R. Jackson, Autumn Gonzalez and Andia Farzaneh for Defendant and Respondent.

Christopher P. Grossgart, Sacramento, Rocio Garcia-Reyes and Willie N. Nguyen for Real Party in Interest and Respondent.

HILL, P.J.

The Department of Industrial Relations, Division of Occupational Safety and Health (Division) issued a citation to an employer for a safety violation on its premises that resulted in injury to an employee. The employer contested the citation. It was upheld by the hearing officer and, on reconsideration, by the Occupational Safety and Health Appeals Board (Board). The employer filed a second petition for reconsideration by the Board, then filed a petition for writ of mandate in the trial court. On the Board's motion for judgment on the pleadings, the trial court dismissed the writ petition, finding it was not timely filed. We conclude filing a second petition for reconsideration was not permitted when the employer was not newly aggrieved by the decision after the first reconsideration, and the petition for writ of mandate was not timely filed after the Board's decision after the first reconsideration.

In light of the recent decision in Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, 265 Cal.Rptr.3d 121, 467 P.3d 1033 ( Saint Francis ), however, we conclude the time limitation for filing the writ petition is subject to equitable tolling, and the employer should have been allowed to amend its petition to allege facts supporting application of that doctrine. Accordingly, we reverse the judgment and remand with directions to the trial court to permit the employer to amend its petition.

FACTUAL AND PROCEDURAL BACKGROUND

On August 30, 2014, Isaul Alvarado, an employee of Ventura Coastal, LLC (Ventura), sustained a serious leg injury when he stepped into an uncovered screw conveyor (also known as an auger) located below ground level on Ventura's premises. On September 19, 2014, the Division conducted an inspection of Ventura's facility; it subsequently issued a citation to Ventura under the California Occupational Safety and Health Act (CalOSHA; Lab. Code, §§ 6300 – 6721 ) for a serious violation of a regulation requiring screw conveyors at or below floor level to be guarded by railings or substantial covers or gratings ( Cal. Code Regs., tit. 8, § 3999, subd. (a) ). Ventura appealed the citation to the Board, arguing that it did not violate the safety order or, if there was a violation, it was misclassified as serious.

The matter was heard before an administrative law judge (ALJ). After taking evidence, the ALJ issued a decision with the following findings: a section of the screw conveyor was uncovered at the time of the incident; an employee had removed the grate that covered the screw conveyor on at least two occasions in the two-month period prior to the incident; a supervisor, Manuel Sierra, was standing on a platform with a direct line of sight to the exposed screw conveyor at the time of the incident; and, with adequate supervision and a thorough inspection of the area, Ventura could have known of the existence of the exposed screw conveyor. The ALJ upheld the citation, finding Ventura committed the violation alleged, and it was properly classified as a serious violation. The ALJ did, however, reduce the proposed penalty.

The Board, on its own motion, ordered reconsideration of the ALJ's decision regarding the penalty. Ventura also filed a petition for reconsideration by the Board, asserting as grounds for reconsideration that the evidence did not justify the findings of fact, and the findings of fact did not support the decision. On September 22, 2017, the Board issued its decision after reconsideration, upholding the decision of the ALJ. The Board concluded the Division established Ventura violated the regulation; Ventura failed to establish its defense that it did not know, and should not reasonably have known, that the screw conveyer was uncovered at the time of the incident; the violation was properly classified as serious; and the ALJ properly modified the penalty.

On October 20, 2017, Ventura filed a second petition for reconsideration with the Board. It asserted three of the Board's factual findings were not supported by the evidence, so the decision exceeded the Board's authority. Alternatively, at a minimum, the violation should be reclassified from serious to general. On October 26, 2017, the chief counsel for the Board sent a letter to Ventura's counsel, confirming a prior telephone conversation and explaining that the Board lacked "statutory authority and/or jurisdiction to reconsider a matter after it has issued a decision after reconsideration."

On December 15, 2017, Ventura filed a petition for a writ of mandate in the superior court, seeking review of the Board's September 22, 2017 decision. The petition named the Board as respondent and the Division as real party in interest. The Board filed a motion to dismiss or for judgment on the pleadings, asserting the writ petition was statutorily required to be filed within 30 days after the Board's decision was issued, the time limit was jurisdictional, the writ petition was not filed within that time period, and therefore the trial court had no power to hear the matter and was required to dismiss the petition. Ventura opposed the motion, arguing its second petition for reconsideration was proper on various grounds, including the ground that Ventura was newly aggrieved by the Board's factual findings and reliance on hearsay evidence. The trial court granted the Board's motion and entered a judgment of dismissal. Ventura appeals from that judgment.

DISCUSSION

I. Standard of Review

The Board's first pleading in the trial court was captioned as a motion to dismiss or for judgment on the pleadings. It asserted Ventura's writ petition should be dismissed or judgment should be entered in the Board's favor because the petition was not timely filed. Like a demurrer to a complaint, the motion was based on the allegations of the petition. Generally, " ‘[t]he bar of the statute of limitations to an action ... should be set up by demurrer, or in an answer, and not by motion to dismiss.’ " ( Berendsen v. McIver (1954) 126 Cal.App.2d 347, 351, 272 P.2d 76.) A demurrer may be filed in response to a petition for writ of administrative mandate. ( Code Civ. Proc., § 1089 ; Boren v. State Personnel Board (1951) 37 Cal.2d 634, 637–638, 234 P.2d 981 ; Hansen v. Board of Registered Nursing (2012) 208 Cal.App.4th 664, 668–670, 675, 145 Cal.Rptr.3d 739 ; Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 571–572, 58 Cal.Rptr. 664.)

" ‘A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. [Citation.] A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review.’ " ( People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777, 174 Cal.Rptr.3d 626, 329 P.3d 180.) Thus, whether we treat the Board's pleading as a motion for judgment on the pleadings or as a miscaptioned demurrer, the standard of review is the same: we independently determine whether, on the state of the pleadings and any matters that may be judicially noticed, it appears the Board was entitled to judgment as a matter of law. ( Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216, 70 Cal.Rptr.2d 745.) In doing so, " ‘[a]ll properly pleaded, material facts are deemed true, but not contentions, deductions, or conclusions of fact or law.’ " ( People ex rel. Harris , at p. 777, 174 Cal.Rptr.3d 626, 329 P.3d 180.)

To the extent our review requires interpretation of statutory language, we are also presented with a legal issue subject to de novo review. ( Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1076–1077, 55 Cal.Rptr.3d 14.) We are not bound by the interpretation applied by an administrative agency or by the trial court. ( Id. at p. 1077, 55 Cal.Rptr.3d 14.) "Instead, we make an independent review of any questions of law necessary to the resolution of this matter on appeal." ( Ibid. )

II. Timeliness of Filing of Writ Petition

A. Administrative process

If the Division believes an employer has violated a safety regulation, it must issue a citation to the employer. ( Lab. Code,¹ § 6317.) The employer then has 15 working days from receipt of the citation to notify the Board that it wishes to contest the citation. (§ 6319, subds. (a), (b).) If the employer gives timely notice that it intends to contest the citation, the Board "shall afford an opportunity for a hearing." (§ 6602.) The initial hearing may be conducted by an ALJ. (§§ 6604, 6605; Cal. Code Regs., tit. 8, § 375.1.) At the hearing, the parties may call and examine witnesses, introduce exhibits, and make motions. ( Cal. Code Regs., tit. 8, § 376.1.) The hearing is conducted informally and need not adhere to the technical rules of admissibility of evidence. (§ 6603; Cal. Code Regs., tit. 8, § 376.2.) "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." ( Cal. Code Regs., tit. 8, § 376.2.)

After the hearing, the ALJ or Board issues a decision, making findings of fact, summarizing the evidence received and relied upon,...