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Murray Co. v. California Occupational Safety and Health Appeals Board

November 17, 2009

MURRAY COMPANY, PLAINTIFF AND APPELLANT,
v.
CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, DEFENDANT AND RESPONDENT;
CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, REAL PARTY IN INTEREST AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Chalfant, Judge. Affirmed. (Los Angeles County Super Ct. No. BS112469).

The opinion of the court was delivered by: Manella, J.

The trial court denied appellant Murray Company's petition for writ of administrative mandate, which challenged a decision by respondent California Occupational Safety and Health Appeals Board (Board) denying appellant's request for reconsideration of the dismissal of its appeals. We affirm.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Real party in interest California Department of Industrial Relations, Division of Occupational Safety and Health (Division) administers and enforces California's Occupational Safety and Health Act (Lab. Code, § 6300 et seq.) (Cal-OSHA) and related regulations (Cal. Code Regs., tit. 8, § 330 et seq.).*fn1 (Rick's Electric, Inc. v. Occupational Safety & Health Appeals Bd. (2000) 80 Cal.App.4th 1023, 1026 (Rick's Electric).) Following an inspection of appellant's workplace, the Division issued three citations to appellant on January 25, 2007. The citations concerned unsafe practices regarding metal embossing machines, and imposed fines totaling $25,600. Two of the citations were identified as "[s]erious."

The Board is "an independent adjudicatory agency" responsible for resolving appeals from the Division's citations. (Rick's Electric, supra, 80 Cal.App.4th at p. 1027; § 148.) The Division's notice of the citations to appellant stated in a section entitled "Appeal Rights": "To initiate an appeal . . . , you must contact the [] Board, in writing or by telephone, within 15 working days from the date of receipt of a Citation. After you have initiated your appeal, you must then file a completed appeal form with the [] Board . . . for each contested citation. Failure to file a completed appeal form with the . . . Board may result in dismissal of the appeal." (Original underlining.) The notice further stated: "You must also attach to the appeal form a legible copy of the Citation you are appealing." (Italics added.)

On January 29, 2007, appellant told the Board by telephone that it intended to appeal the citations. On the same date, the Board acknowledged the phone call by letter and sent appeal forms to appellant. The Board's letter stated: "Attach a copy of the citation(s) you are appealing to your completed Appeal form(s)." (Original underlining.)

On February 8, 2007, appellant filed three appeal forms, but provided no copies of the citations. The forms were executed by Frank Estrada, appellant's safety director. On March 16, 2007, the Board sent a notice to appellant by certified mail entitled "Notice of Intent to Dismiss Appeal." The notice stated that "the following information was not received: [¶] [x] Citations to be appealed." The notice warned appellant that its appeal would be dismissed unless the required information was submitted within 10 days of the notice. Appellant received the notice on March 20, 2007. The copy of the notice in the Board's records contains the following handwritten notation: "copy of citations to be appealed - called on 3-28-07 at 8:45 am."

On March 30, 2007, appellant submitted a completed form entitled "Employer's Signed Statement of Abatement of Serious Violations," sometimes called a "161 form." The form identified the pertinent inspection numbers and described appellant's measures to abate the violations identified in the citations, but was not accompanied by copies of the citations. The next day, appellant submitted a new appeal form that again omitted copies of the citations.

On August 29, 2007, an administrative law judge ordered the appeals dismissed on the ground that appellant had not provided completed appeal forms. In September 2007, appellant petitioned the Board to reconsider the ruling. Accompanying the petition was a declaration from Estrada, who stated that he had neither legal training nor a college education, and that the Board's notices had confused him. Estrada further stated: "Until it was explained to me by the attorney . . . retained for the purpose of handling this Petition . . . , I did not understand that the [Board] and the [Division] were two completely separate entities. Consequently, it simply did not occur to me to forward the citations as requested in the [] Board's Notice of Intent to Dismiss Appeal. My thought process was that since the [] Board issued the citations, its request must be regarding another document, i.e.[,] documentation that [appellant] generated."

On November 14, 2007, a two-member panel of the Board denied the petition. The Board concluded that appellant had established no ground for reconsideration found in section 6617, which governs petitions for reconsideration. In addition, the Board stated that it has "consistently and frequently held that failure to furnish copies of the citations being appealed, even if the failure is due to a misunderstanding of the appeal process, is not ground for reconsideration."

Appellant sought relief from the Board's ruling by petition for writ of mandate, which the trial court denied on September 11, 2008. Judgment was entered on October 14, 2008. This appeal followed.

DISCUSSION

Appellant contends that the trial court erred in denying his petition for writ of ...


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