APPEAL from a judgment granting plaintiff's writ of mandate and order denying attorney fees of the Superior Court of Sacramento County, Patrick Marlette, Judge. (Super. Ct. No. 07CS00518)
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Under the California Occupational Safety and Health Act of 1973 (Cal-OSHA) (Lab. Code, § 6300 et seq.)*fn2 and the California Code of Regulations (Cal. Code of Regs., tit. 8, § 330 et seq.),*fn3 the Department of Industrial Relations, Division of Occupational Safety and Health (the Division) may issue citations to multiple employers at a single worksite for a Cal-OSHA violation (§ 6400; tit. 8, § 336.10). One type of multiple employer, among others, is the "controlling employer," i.e., the employer responsible, by contract or through actual practice, for safety and health conditions at the worksite. (§ 6400, subd. (b)(3); tit. 8, § 336.10.)
We conclude that the Occupational Safety and Health Appeals Board (the Board) improperly held--in the Board's decision at issue here (Harris-Board Decision)*fn4 --that the Division had to demonstrate, as an element of its prima facie case against a controlling employer cited for a general violation of Cal-OSHA, that "the employer was in a position to abate the . . . violative condition at issue" (Harris-Board Decision, supra, 2007 CA OSHA App.Bd. LEXIS 50 at p. *15). We reach this conclusion based on our opinion in Overaa Construction v. California Occupational Safety & Health Appeals Bd. (2007) 147 Cal.App.4th 235 (Overaa), which we issued two months before the Harris-Board Decision was decided.
We shall affirm the trial court's judgment and attorney fees order, which, respectively, (1) granted a writ of mandate that vacated the Harris-Board Decision, remanded the matter to the Board, and specified that, on remand, this "position to abate" requirement was not an element of the Division's prima facie case; and (2) denied the writ petitioner's request for attorney fees under the private attorney general theory of Code of Civil Procedure section 1021.5.
In California, the Division has primary responsibility for administering and enforcing Cal-OSHA. (Rick's Electric, Inc. v. Occupational Safety & Health Appeals Bd. (2000) 80 Cal.App.4th 1023, 1026 (Rick's Electric).) The Board is an independent adjudicatory agency that resolves appeals from Division-issued citations under Cal-OSHA. (Rick's Electric, at p. 1027; § 148.)
Prior to the adoption of title 8, section 336.10 in 1997, California had no rules for issuing multiple employer (multi-employer) citations. In 1997, the Director of the Department of Industrial Relations (the Director) promulgated the multi-employer worksite standard--title 8, section 336.10--in response to the federal Occupational Safety and Health Administration's determination that, in the absence of such a standard, the Cal-OSHA program was not as protective as the federal program, as federal law required.
Title 8, section 336.10 provides:
"On multi-employer worksites, both construction and non-construction, citations may be issued only to the following categories of employers when the Division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the Division:
"(a) The employer whose employees were exposed to the hazard (the exposing employer);
"(b) The employer who actually created the hazard (the creating employer);
"(c) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite; i.e., the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer); or
"(d) The employer who had the responsibility for actually correcting the hazard (the correcting employer).
"Note: The employers listed in [subdivisions] (b) through (d) may be cited regardless of whether their own employees were exposed to the hazard."
In 1999, the Legislature codified title 8, section 336.10 by amending Labor Code section 6400, subdivision (b)(1) through (4), which repeats the regulation virtually word for word.
This matter arose out of a citation the Division issued to Harris Construction Company, Inc. (Harris) for a general violation of title 8, section 3329, which requires that pressurized systems be ...