California Court of Appeal, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Kim Garlin Dunning, Judge. Petition granted. (Super. Ct. No. 30-2012-00581868).
Jones Day, Brian A. Sun and Frederick D. Friedman, Los Angeles, for Petitioners.
No appearance for Respondent.
Tony Rackauckas, District Attorney, and Kelly A. Roosevelt, Deputy District Attorney, for Real Party in Interest.
Amy D. Martin, Pasadena, and Kathryn J. Woods, Los Angeles, for the Department of Industrial Relations Division of Occupational Safety and Health as Amicus Curiae on behalf of the Real Party in Interest.
Lawrence H. Kay for Construction Employers Association as Amicus Curiae on behalf of Petitioners
RYLAARSDAM, ACTING P.J.
In this case we are called on to determine whether federal law preempts the effort by a district attorney to recover civil penalties under California's Unfair Competition Law (UCL) (Bus. & Prof.Code, § 17200 et seq.) based on an employer's alleged violation of workplace safety standards. Petitioners Solus Industrial Innovations, Emerson Power Transmission Corp., and Emerson Electric Co. (collectively Solus) contend the trial court erred by overruling their demurrer to two causes of action filed against them by Respondent, the Orange County District Attorney, alleging a right to recover such penalties. Solus argues tat federal workplace safety law (Fed/OSHA) preempts any state law workplace safety enforcement mechanism which has not been specifically incorporated into the state workplace safety plan approved by the U.S. Secretary of Labor (the Secretary).
The district attorney contends that once a state workplace safety plan has been approved by the Secretary, as California's was, the state retains significant discretion to determine how it will enforce the safety standards incorporated therein, and thus the state may empower prosecutors to enforce those standards through whatever legal mechanism is available when such a case is referred to them.
The trial court agreed with the district attorney and consequently overruled Solus's demurrer to the two causes of action based on the UCL. However, the court also certified this issue as presenting a [168 Cal.Rptr.3d 278] controlling issue of law suitable for early appellate review under Code of Civil Procedure section 166.1. Solus then filed a petition for writ of mandate with this court, asking us to review the trial court's ruling. After we summarily denied the petition, the Supreme Court granted review and transferred the case back to us with directions to issue an order to show cause.
We issued the order to show cause and now conclude the trial court's ruling was incorrect on the merits. California's workplace safety plan, as approved by the Secretary, does not include any provision for civil enforcement of workplace safety standards by a prosecutor through a cause of action for penalties under the UCL. Under controlling law, any part of a state plan not expressly approved is preempted. Accordingly, we grant the petition.
As is typical when we review the propriety of the trial court's ruling on a demurrer, " ‘ we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law.’ " ( West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792, 154 Cal.Rptr.3d 285.)
Solus makes plastics at an Orange County manufacturing facility. In 2007, Solus installed an electric water heater intended for residential use at the facility. In March 2009, that water heater exploded, killing two workers instantly in what district attorney refers to as an " untimely and horrific death."
After the incident, California's Division of Occupational Safety and Health (Cal/OSHA) opened an investigation and determined the explosion had been caused by a failed safety valve and the lack of " any other suitable safety feature on the heater" due to " manipulation and misuse." Based on Cal/OSHA's investigation, it charged Solus with five " ‘ [s]erious' " violations of Title 8 of the California Code of Regulations in an administrative proceeding, including violations of: " (1) section 467(a) for failure to provide a proper safety valve on the heater; (2) section 3328(a) for permitting the unsafe operation of the water heater; (3) section 3328(b) for improperly maintaining the water heater; (4) section 3328(f) for failing to use good engineering practices when selecting and using the unfit residential water heater in the extrusion operations; and (5) section 3328(h) for permitting unqualified and untrained personnel to operate and maintain the water heater." Cal/OSHA also cited Solus with one " ‘ [w]illful’ " violation of the same regulation, based on its " willful failure to maintain the residential water heater in a safe operating condition."
Because the incident involved the death of two employees, and there was evidence that a violation of law had occurred, Cal/OSHA's Bureau of Investigation forwarded the results of its internal investigation to the district attorney as required by Labor Code section 6315, subdivision (g). In March 2012, the district attorney filed criminal charges against two individuals, including Solus's plant manager and its maintenance supervisor, for felony counts of violating Labor Code section 6425, subdivision (a). (See People v. Faulkinbury,