Filed 2/24/14




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


THE PEOPLE,

    Petitioner,

        v.                                              G047707

THE SUPERIOR COURT OF ORANGE                            (Super. Ct. No. 30-2012-00581868)
COUNTY,
                                                        OPINION
    Respondent;

SOLUS INDUSTRIAL INNOVATIONS,
LLC, et al.,

    Real Parties in Interest.


                  Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Kim Garlin Dunning, Judge. Petition Denied.
                  Tony Rackauckas, District Attorney, and Kelly A. Roosevelt, Deputy
District Attorney, for Petitioner.
                  No appearance for Respondent.
                  Jones Day, Brian A. Sun and Frederick D. Friedman, for Real Parties in
Interest.
              Amy D. Martin and Kathryn J. Woods for the Department of Industrial
Relations Division of Occupational Safety and Health as Amicus Curiae on behalf of the
People.


                                  *           *           *


              In this case we are called on to interpret the effect of Labor Code section
6315, subdivision (g), which specifies that in cases involving serious injury to five or
more employees in the workplace, or the death of an employee, and where a formal
investigation by the Division of Occupational Safety and Health (the Division) was
mandated, the results of that investigation “shall be referred in a timely manner . . . to the
appropriate prosecuting authority having jurisdiction for appropriate action.”
              Petitioner, the Orange County District Attorney, contends that when such a
case is referred to him, he has standing to pursue claims for both criminal and civil
penalties against the responsible parties. In this case, he sued respondents Solus
Industrial Innovations, Emerson Power Transmission Corp. and Emerson Electric Co.
(collectively Solus), alleging various civil violations, including two causes of action
based Labor Code sections 6428 and 6429. Solus contends those two causes of action are
improper, because while the district attorney has plenary power to pursue criminal
penalties where appropriate, he has no power to pursue civil penalties unless specifically
authorized by statute to do so. These two Labor Code statutes include no such
authorization. Based on that contention, Solus demurred to the two causes of action in
the trial court, arguing the district attorney had no standing to enforce the underlying
statutes.
              The trial court agreed with Solus and consequently sustained its demurrer
to the two causes of action based on the Labor Code without leave to amend. However,



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the court also certified this issue as presenting a controlling issue of law suitable for early
appellate review under Code of Civil Procedure section 166.1. The district attorney 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 correct on the merits. The statutory scheme for enforcement of workplace safety
standards reflects that the Division is the governmental agency responsible for civil
enforcement of the Labor Code provisions, and that mandatory referral of serious cases to
prosecutors is primarily intended to facilitate criminal prosecution where appropriate.
We consequently deny the petition.


                                           FACTS


              As is required 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.)
              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 the district
attorney refers to as an “untimely and horrific death.”
              After the incident, the Division 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 the Division’s
investigation, it charged Solus with five “‘[s]erious’” violations of title 8 of the California



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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.” The Division 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, the Division’s Bureau of Investigation
(BOI) 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, (Super. Ct. Orange County, 2012, No.
12CF0698).) No party challenges the district attorney’s standing to bring these or other
appropriate criminal prosecutions.
              In July 2012, the district attorney also filed the instant civil action against
Solus. The complaint contains four causes of action, all based on the same worker health
and safety standards placed at issue in the administrative proceedings.
              The first cause of action alleges that Solus’s violations of the safety
standards set forth in title 8 of the California Code of Regulations also qualified as a
separate “serious violation” of occupational safety or health standards under Labor Code
section 6428, for each day the water heater was in operation, and for each employee
subjected to the hazardous condition. It seeks recovery of “civil penalties of ‘up to



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twenty-five thousand dollars ($25,000) for each violation’ from November 29, 2007 to
March 19, 2009.”
              The second cause of action alleges that Solus’s violations of the safety
standards set forth in title 8 of the California Code of Regulations also constituted a
separate “willful violation” of occupational safety or health standards under Labor Code
section 6429 for each day the water heater was in operation, and for each employee
subjected to the hazardous condition as a result of the violation. The district attorney
seeks to recover “civil penalties of ‘not more than seventy thousand dollars ($70,000) for
each violation, but in no case less than five thousand dollars ($5,000) for each willful
violation from November 29, 2007 to March 19, 2009.”
              The third and fourth causes of action allege that these same Labor Code
violations also constitute unfair business practices under California’s Unfair Competition
Law (UCL) (see Bus. & Prof. Code, § 17200 et seq.). However, it is only the first and
second causes of action which are at issue in this writ proceeding.
              Solus demurred to the first and second causes of action, contending the
district attorney had no statutory authority to pursue civil actions for Cal/OSHA
violations. The trial court agreed, and sustained the demurrer to these causes of action,
without leave to amend.
              The trial court subsequently granted a request to certify the standing issue
as appropriate for early appellate review under Code of Civil Procedure section 166.1,
finding “[t]he issue of [the district attorney’s] standing to bring the First and Second
Causes of Action in the Complaint . . . presents a controlling question of law as to which
there are substantial grounds for difference of opinion and that appellate resolution of this
issue may materially advance the conclusion of the litigation.”
              The district attorney filed a petition for writ of mandate with this court,
which we summarily denied. After our denial, the Supreme Court granted review and



                                              5
transferred the case back to us with directions to issue an order to show cause. On May
10, 2013, we issued the order to show cause.


                                       DISCUSSION


1. The Statutory Scheme for Workplace Safety Violations
              Labor Code sections 6428 and 6429, the civil penalty provisions underlying
the district attorney’s two challenged causes of action, are part of the California
Occupational Safety and Health Act of 1973 (Lab. Code, § 6300 et seq; the Act), which
was “enacted for the purpose of assuring safe and healthful working conditions for all
California working men and women by authorizing the enforcement of effective
standards, assisting and encouraging employers to maintain safe and healthful working
conditions, and by providing for research, information, education, training, and
enforcement in the field of occupational safety and health.” (Lab. Code, § 6300.)
              The Act specifically gives the Division “the power, jurisdiction, and
supervision over every employment and place of employment in this state, which is
necessary to adequately enforce and administer all laws and lawful standards and orders,
or special orders requiring such employment and place of employment to be safe, and
requiring the protection of the life, safety, and health of every employee in such
employment or place of employment.” (Lab. Code, § 6307.)
              The Act also requires the Division to “investigate the causes of any
employment accident that is fatal to one or more employees or that results in a serious
injury or illness, or a serious exposure, unless it determines that an investigation is
unnecessary . . . [and to] establish guidelines for determining the circumstances under
which an investigation of these accidents and exposures is unnecessary.” (Lab. Code,
§ 6313, subd. (a).)



                                              6
              Labor Code section 6315, subdivision (b), specifies that within the Division
is the BOI, which “is responsible for directing accident investigations involving
violations . . . in which there is a serious injury to five or more employees, death, or
request for prosecution by a division representative. The [BOI] shall review inspection
reports involving a serious violation where there have been serious injuries to one to four
employees or a serious exposure, and may investigate those cases in which the [BOI]
finds criminal violations may have occurred.” Moreover, “[i]n any case where the [BOI]
is required to conduct an investigation, and in which there is a serious injury or death, the
results of the investigation shall be referred in a timely manner by the bureau to the
appropriate prosecuting authority having jurisdiction for appropriate action, unless the
[BOI] determines that there is legally insufficient evidence of a violation of the law.”
(Lab. Code, § 6315, subd. (g).) Moreover, “[u]pon the request of a county district
attorney, the department may develop a protocol for the referral of cases that may involve
criminal conduct to the appropriate prosecuting authority in lieu of or in cooperation with
an investigation by the bureau.” (Lab. Code, § 6315, subd. (i).)
              Labor Code section 6425, subdivision (a), expressly provides for criminal
prosecution of “[a]ny employer and any employee having direction, management,
control, or custody of any employment, place of employment, or of any other employee,
who willfully violates any occupational safety or health standard, order, or special order,
or Section 25910 of the Health and Safety Code, and that violation caused death to any
employee, or caused permanent or prolonged impairment of the body of any
employee . . . .”
              Labor Code section 6317 requires the Division to issue a citation to an
employer in any case where it “believes that an employer has violated Section 25910 of
the Health and Safety Code or any standard, rule, order, or regulation established
pursuant to Chapter 6 (commencing with Section 140) of Division 1 of the Labor Code,



                                              7
or any standard, rule, order, or regulation established pursuant to this part . . . .” (Lab.
Code, § 6317.) A citation must be issued within six months of the occurrence of a
violation. (Ibid; Vial v. California Occupational Saf. & Health Appeals Bd. (1977) 75
Cal.App.3d 997, 1005.) Labor Code section 6317 also specifically empowers the
Division to “impose a civil penalty against an employer as specified in Chapter 4
(commencing with section 6423) of this part.” (Italics added.) Labor Code sections 6428
and 6429, the penalty provisions at issue herein, are within that chapter.
              If the Division issues a citation or a notice of civil penalty, it is required,
within a reasonable time, to notify the employer by certified mail of the citation, and of
the employer’s right to contest the citation. The employer may then appeal the citation,
or the “notice of civil penalty” to the “appeals board.” (Lab. Code, § 6319, subd. (b).)
The final enforcement decision reached by the Division as a result of this administrative
process “may be reviewed by the Supreme Court and the courts of appeal as may be
provided by law.” (Lab. Code, § 6308.)


2. The District Attorney’s Limited Standing to Bring Civil Actions
              Solus’s challenge to the district attorney’s standing to maintain these Labor
Code causes of action is based on Safer v. Superior Court (1975) 15 Cal.3d 230 (Safer).
In Safer, our Supreme Court concluded that a district attorney’s power to bring civil
actions is limited to situations where such action is expressly authorized. As the court
explained, “the Legislature has manifested its concern that the district attorney exercise
the power of his office only in such civil litigation as that lawmaking body has, after
careful consideration, found essential. An examination of the types of civil litigation in
which the Legislature has countenanced the district attorney’s participation reveals both
the specificity and the narrow perimeters of these authorizations.” (Id. at p. 236, italics
added.) As Solus points out, Safer has been cited with approval by the Supreme Court in



                                               8
subsequent cases; most recently in People v. Superior Court (Humberto S.) (2008) 43
Cal.4th 737, 753, footnote 12, where there court reiterated that “a district attorney has no
authority to prosecute civil actions absent specific legislative authorization.” (Italics
added.)
              The district attorney attempts to minimize the significance of Safer, arguing
it must be construed narrowly so as to avoid infringing his statutory authority to act as
“public prosecutor” to “initiate and conduct on behalf of the people all prosecutions for
public offenses.” (Gov. Code, § 26500, italics added; section 26500.) In the district
attorney’s view, section 26500 implicitly confers on him the authority to pursue all
claims seeking penalties, whether civil or criminal, and places the onus on the Legislature
to specify the situations where he lacks authority to pursue civil penalties: “When the
Legislature seeks to restrict the District Attorney’s ability to pursue civil penalties for
public offenses, Section 26500 confirms that the law must expressly so state; otherwise,
the District Attorney has authority to act as the public prosecutor for all public offenses.
If the Legislature intended to grant [the Division] exclusive authority to seek civil
penalties and limit prosecutors to taking criminal actions, . . . the Legislature could
easily have said so, but it did not.” (Italics added.)
              There are two flaws in that argument. First, section 26500 does not define
“public offenses,” and the district attorney offers no persuasive authority for his implicit
assertion the term would naturally encompass violations of civil penalty statutes as well
as criminal ones. We would conclude the opposite, based on Government Code section
26501. While neither statute actually defines the term “public offenses,” the latter
strongly implies the term could not encompass civil wrongs, because it requires a district
attorney to “institute proceedings before magistrates for the arrest of persons charged
with or reasonably suspected of public offenses when he has information that such
offenses have been committed.” (Gov. Code, § 26501, italics added.) The “arrest” of



                                               9
persons suspected of “public offenses” could not be mandated if that term were
interpreted to include mere civil statutory violations.
                 At oral argument the district attorney relied, for the first time, on Penal
Code section 15 to support his expansive definition of the term “public offenses.” He
argued Penal Code section 15 defined a “crime or public offense” as including any “act
committed or omitted in violation of a law forbidding or commanding it,” and which is
punishable by death, imprisonment, fine, removal from office or disqualification to hold
or enjoy an office. But even if we were to assume (as the district attorney apparently
does) that a “fine” under the Penal Code is the same thing as a civil penalty, the
contention still falls apart when we consider the entire language of Penal Code section
15. The statute states that the violations of law which qualify as crimes or public
offenses are those to which the specified penalties are annexed “upon conviction.” There
are no “convictions” under civil law. Moreover, Penal Code section 16 – the very next
statute – states that “[c]rimes and public offenses include: [¶] 1. Felonies; [¶] 2.
Misdemeanors; and [¶] 3. Infractions.” Civil wrongs are not mentioned.
                 The second problem with the district attorney’s argument is that it is
contrary to Safer, which makes clear that the Legislature’s traditional practice has been to
affirmatively specify the circumstances in which a district attorney can pursue claims in
the civil arena, not the circumstances in which he cannot. (Safer, supra, 15 Cal.3d at p.
236.) Indeed, in the area of employee rights specifically, Labor Code section 218
provides an excellent example of this practice, by expressly stating “[n]othing in this
article shall limit the authority of the district attorney of any county or prosecuting
attorney of any city to prosecute actions, either civil or criminal, for violations of this
article or to enforce the provisions thereof independently and without specific direction of
the division.”




                                                10
              Business and Professions Code section 17204 provides another example,
stating, “Actions for relief pursuant to this chapter shall be prosecuted exclusively in a
court of competent jurisdiction by the Attorney General or a district attorney or by a
county counsel authorized by agreement with the district attorney . . . .” And Business
and Professions Code section 17206, subdivision (a) states, “Any person who engages,
has engaged, or proposes to engage in unfair competition shall be liable for a civil penalty
not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall
be assessed and recovered in a civil action brought in the name of the people of the State
of California by the Attorney General, [or] by any district attorney . . . .”
              These statutes, which explicitly confer standing on district attorneys to
pursue the specified civil penalties, reinforce the conclusion that section 26500 is not
intended to give district attorneys plenary authority to pursue any and all such penalties.
As pointed out in Safer, we infer the district attorney’s lack of authority to proceed where
no authority is granted from “the Legislature’s clear demonstration that it knows how to
grant him such power when it wishes to do so.” (Safer, supra, 15 Cal.3d. at pp. 237-238.)
Based on this analysis, we conclude the only plenary authority conferred upon district
attorneys is to pursue actions in the criminal arena.
              Finally, Board of Supervisors v. Simpson (1951) 36 Cal.2d 671 (Simpson),
which the district attorney relies upon heavily in his reply brief, is entirely consistent with
our conclusion. Simpson involved a dispute about whether a county board of supervisors
could compel the district attorney to bring a civil action to abate a public nuisance in the
name of the people, without violating the separation of powers doctrine. The Supreme
Court concluded it could, citing Government Code section 26528, which expressly
provides for a district attorney to bring such a suit, and authorizes a board of supervisors
to compel it: “The district attorney may, and when directed by the board of supervisors
shall, bring a civil action in the name of the people of the State of California to abate a



                                              11
public nuisance in his county.” (Gov. Code, § 26528, italics added.) Given that Simpson
involves a district attorney who initiated a civil action which was expressly authorized by
statute, it provides no support for the district attorney’s argument here.
              Consequently, in the absence of explicit statutory authorization conferred
on district attorneys to pursue claims for civil penalties under Labor Code sections 6428
and 6429, we have no choice but to conclude they lack that standing.


3. No Statute Confers Standing on the District Attorney to Bring These Causes of Action
              Neither Labor Code sections 6428 and 6429, nor any other statute making
specific reference to those statutes, expressly confers standing on the district attorney to
bring an action for recovery of the civil penalties provided for in those statutes. And in
light of our Supreme Court’s determination that “a district attorney has no authority to
prosecute civil actions absent specific legislative authorization” (People v. Superior
Court (Humberto S.), supra, 43 Cal.4th at p. 753, italics added), we could not conclude
that standing could be established by implication.
              But even if we believed that standing could be established by implication,
neither the district attorney nor the Division acting as amicus curiae offers any persuasive
argument that it should be found in this case. Both the district attorney and the Division
point to Labor Code section 6315, subdivision (g) as the source of implied standing,
arguing its requirement that cases be referred to prosecutor’s for “appropriate action”
confers upon prosecutors the discretion to file whatever actions, civil or criminal, that
they deem appropriate.
              Indeed, the district attorney suggests the trial court’s interpretation of Labor
Code section 6315 amounted to striking the word “appropriate” from the phrase
“appropriate action” and substituting the word “criminal” in its place. We disagree. The
trial court’s interpretation merely reflects its acknowledgment that other laws, as



                                             12
discussed in Safer and its progeny, restrict the scope of actions which a district attorney
may appropriately pursue in the civil realm. And to the extent the district attorney is
otherwise statutorily authorized to pursue appropriate civil claims against an employer
who caused a workplace injury or death, those claims would be among the actions
available to him. But Labor Code section 6315, subdivision (g) does not itself create
plenary standing.
              The district attorney also suggests the trial court was misguided in
suggesting that a rule permitting district attorneys to pursue these civil penalties would
allow them to engage in “cherry pick[ing],” and throw the Cal/OSHA enforcement
scheme into disarray. The district attorney claims “cherry pick[ing]” is not a concern
because he can only act in cases referred by the BOI for prosecution. But that contention
ignores the fact the BOI is statutorily obligated to refer all cases which involve serious
injury to multiple employees, or a death, unless it determines there is insufficient
evidence of any violation of law. The prosecutor then has discretion to take appropriate
action, or to not take action, in response to that mandatory referral. If that discretion
were deemed to include the right to pursue the same civil penalties which by statute are
within the province of the Division (Lab. Code, § 6317), as well as criminal actions, the
prosecutor could presumably usurp the Division’s own discretion to determine, through
its administrative process, whether the imposition of civil penalties under either Labor
Code section 6428 or section 6429 would be appropriate.
              Of course, the district attorney appears to believe this would not be a
problem, because in his view, the Division is essentially incapable of enforcing these
Labor Code civil penalties in serious cases. According to the district attorney, it is the
not the Division’s responsibility to “investigat[e] the most serious workplace violations”;
instead, the Division is expected only to conduct an “initial investigation and file[]
citations within the short six month window set forth for administrative action.” By



                                              13
contrast, he claims it is the responsibility of the BOI, and not the Division, to
“investigat[e] the most serious workplace violations,” which he contends “takes much
longer.” Thus, in the view of the district attorney, it is unlikely the Division would ever
be able to pursue the significant civil penalties he has undertaken to enforce in this case,
and consequently “there [could never] be any enhanced or greater civil penalties assessed
against the most egregious offenders.”
              Again, there are several flaws in this argument. First, and most significant,
the assertion that the Division cannot be expected to enforce these most serious civil
penalty provisions is simply inconsistent with statutory scheme. Labor Code section
6317 gives the Division explicit authority to do just that. Second, contrary to the district
attorney’s apparent belief, the Division and the BOI are not separate entities with
independent investigative responsibilities. The BOI is part of the Division. (Lab. Code,
§ 6315, subd. (a) [“There is within the division a Bureau of Investigations”].) If the
Division has to make an enforcement decision in a serious case, we have no reason to
doubt that the BOI would cooperate in that effort to its fullest extent. And finally, there
is simply no support for the district attorney’s contention that the BOI itself would be
unable to sufficiently investigate a serious incident within the six-month time frame for
issuance of citations by the Division. To the contrary, the district attorney’s own
complaint in this case alleges that the citations issued by the Division against Solus in the
underlying administrative action were based upon the results of a completed investigation
and encompassed five “[s]erious” and one “[w]illful” violation. And when the district
attorney took action after receiving the mandatory referral from the BOI, he alleged the
right to recover civil penalties against Solus based upon the exact same violations. There
is simply no basis to infer that the district attorney benefitted from the additional passage
of time or any enhanced investigation. The allegations are unchanged.




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              Finally, in support of its amicus brief, the Division points out that
prosecutors have successfully pursued civil penalties without apparent objection in other
cases, and asked us to take judicial notice of the outcomes in those cases. We declined to
take judicial notice because the mere fact that some trial courts have allowed such claims
to proceed without objection does nothing to establish those claims were pursued
appropriately. “‘It is axiomatic that cases are not authority for propositions not
considered.’” (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)


                                      DISPOSITION


              The petition is denied. Solus is to recover costs of this proceeding.
CERTIFIED FOR PUBLICATION




                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



THOMPSON, J.




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