Judge Mitchell L. Beckloff, Case 22STCP04305 2023-05-03 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP04305, Date: 2023-05-03 Tentative Ruling

CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

Through this proceeding, Petitioner, the California Department of Industrial Relations, Division of Occupational Safety and Health, seeks an order requiring Respondent, the California Occupational Safety and Health Appeals Board, to “set aside its findings and issue an Amended Decision After Reconsideration . . . .” (Pet., Prayer ¶ 3.)

Petitioner issued two citations to Real Party in Interest, American Fumigation Services LLC. (Pet., ¶ 10.) Real Party timely appealed only one of the two citations. (Pet., ¶ 11.) During administrative proceedings before an administrative law judge (ALJ), Real Party indicated it intended to file a late appeal for the second citation and did so. (Pet., ¶¶ 12, 14.) Real Party sought leave to file the late appeal based upon mistake and inadvertence. (Pet., ¶ 14.)

The ALJ inquired whether Petitioner opposed the motion. (Pet., ¶ 15.) Petitioner noted “it did not object to the motion and deferred to [Respondent’s] decision as to whether . . . there was good cause to file the late appeal.” (Pet., ¶ 15.)

Believing the ALJ erred, Petitioner filed a petition for reconsideration. (Pet., ¶ 17.) Petitioner argued Respondent did not have jurisdiction to hear the late appeal. (Pet., ¶ 17.) Petitioner asserted “the ALJ acted improperly be granting a late appeal without a finding of good [cause] as required by Labor Code § 6601, . . . .” (Pet., ¶ 17.)

Respondent denied the petition for reconsideration. (Pet., ¶ 18.) “ ‘In its Denial, Respondent[] found that the argument that the Order is tantamount to a ‘final order’ is not persuasive because ‘mere filing of an appeal does not conclusively establish or disprove Employer’s culpability, but merely provides the parties a forum for resolving their difference’ and that judicial action would still be needed for a final determination of the Employer’s culpability.’ ” (Pet., ¶ 18.)

Petitioner contends it has been prejudiced by “Respondent’s denial to review the Order because [Respondent] acted without and in excess of its powers.” (Pet., ¶ 20.)

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff’s claim is clear, but no liability exists under substantive law and no amendment would change the result, the sustaining of a demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on the plaintiff to show how the complaint might be amended to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

Respondent demurrers to the petition on two grounds. First, Respondent argues Petitioner is not entitled to interlocutory review, and Respondent “properly denied interlocutory review of the [Petitioner’s] petition for reconsideration.” (Demurrer 11:22-23.) Second, Respondent argues Petitioner has not exhausted its administrative remedies, and therefore, the petition is premature. (Demurrer 11:23-12:1.)

Through this proceeding, Petitioner has requested an order requiring Respondent to set aside its decision denying reconsideration. Petitioner contends Respondent “lacks fundamental jurisdiction to hear the late appeal.” (Opposition 4:10-12.) The lack of jurisdiction to hear the late appeal, according to Petitioner, constitutes a “final” order on the issue of Respondent’s jurisdiction such that Respondent “improperly denied interlocutory review of a jurisdictional issue . . . .” (Opposition 3:1.)

“If within 15 working days from receipt of the citation or notice of civil penalty issued by the division, the employer fails to notify the appeals board that he intends to contest the citation or notice of proposed penalty, . . . the citation or notice of proposed penalty shall be a final order of the appeals board and not subject to review by any court or agency. The 15-day period may be extended by the appeals board for good cause.” (Emphasis added.)

Labor Code section 6614, subdivision (a) addresses reconsideration of orders made by Respondent or an ALJ:

“At any time within 30 days after the service of any final order or decision is made and filed by the appeals board or a hearing officer, any party aggrieved directly or indirectly by any final order or decision, made and filed by the appeals board or a hearing officer under any provision contained in this division, may petition the appeals board for reconsideration in respect to any matters determined or covered by the final order or decision and specified in the petition for reconsideration. Such petition shall be made only within the time and in the manner specified in this chapter.” (Emphasis added.)

First, Labor Code section 6601 specifically allows Respondent to consider an employer’s contest to a citation issued by Petitioner even where the employer did not contest the citation within 15 days so long as Respondent finds good cause. There is no question Respondent (through the ALJ) found good cause to allow Real Party to challenge citation 2, item 1. (RJN, Ex. A.) Respondent’s decision does not address a matter of fundamental jurisdiction because the ALJ made a factual finding of good cause thereby allowing the challenge to go forward.[1] Accordingly, there is no jurisdictional defect as alleged by Petitioner.

That Petitioner disagrees with Respondent’s factual finding is not controlling. Petitioner may challenge that finding after proceedings before Respondent (through the ALJ) are completed. In fact, at the conclusion of the proceedings Petitioner may not be aggrieved. There is no final order mandating Respondent consider the petition for reconsideration. (Lab. Code, § 6614, subd. (a).) Thus, Petitioner had no statutory right to request reconsideration by Respondent.

“ ‘An interlocutory order is one issued by a tribunal before a final determination of the rights of the parties to the action has occurred. “In determining whether a judgment is final or merely interlocutory, the rule is that if anything further in the nature of the judicial action on the part of the court is essential to a final determination of the rights of the parties, the judgment is interlocutory only[].” ’ ” (In the Matter of the Appeal of: Fedex Ground, Employer, Cal/OSHA app. 13-1220 [Sept. 17, 2014][citation omitted].)

Petitioner seeks judicial review of an interlocutory order. Respondent’s “ ‘precedent holds that reconsideration will not be granted concerning interlocutory rulings reasoning that they are not “final” or orders within the meaning of the Labor Code section 6614.’ ” (In the Matter of the Appeal of: Fedex Ground, Employer, Cal/OSHA app. 13-1220 [Sept. 17, 2014][citation omitted].) Certainly, Respondent has recognized “there are exceptions to this rule, which do allow for appeals of interlocutory orders, ‘such as those involving questions of law, orders which are effectively final regarding issues independent of a case’s merits, or matters which are final as to a particular person.’ ” (Ibid. [Citation omitted.]) The order here, however, does not fall into one of these categories. Whether the late appeal should go forward turned on the ALJ’s review of the facts—did Real Party demonstrate good cause? The issue requires fact finding and is not a pure question of law. At the conclusion of the proceedings if Petitioner remains aggrieved it may seek judicial review of Respondent’s good cause finding.

Second, the controversy before Respondent (through the ALJ) is pending. That is, no final order from the administrative proceedings has issued. As noted, whether, at the conclusion of the matter before Respondent, Petitioner will be aggrieved remains unanswered. There is no reason at this point in the proceedings for this court to interfere with the agency and its decision-making process. Contrary to Petitioner’s position, jurisdiction is not in issue—the ALJ’s factual finding of good cause allows the proceeding to continue as to citation 2, item 1.

[1] The court notes Petitioner submitted on the factual issue of good cause and filed no opposition to Real Party’s request it be permitted to file a late appeal.