58 Cal.App.5th 1
Cal. Ct. App.2020Background
- On August 30, 2014 an employee was seriously injured after stepping into an uncovered screw conveyor at Ventura Coastal, LLC’s facility; Cal/OSHA issued a citation alleging a serious violation of guarding regulations.
- Ventura contested the citation; an ALJ upheld the violation (but reduced the penalty) after finding the conveyor had been uncovered and supervisory awareness and supervision failures supported the citation.
- The Occupational Safety and Health Appeals Board (Board) granted reconsideration (on penalty) and, on September 22, 2017, issued a decision after reconsideration upholding the ALJ’s result and adding a new factual finding that the plant supervisor had previously reported removed grates.
- Ventura filed a second petition for reconsideration with the Board (Oct. 20, 2017); the Board’s counsel advised it lacked statutory authority to reconsider again. Ventura instead filed a writ of mandate in superior court on Dec. 15, 2017 (84 days after the Board decision).
- The trial court granted the Board’s motion for judgment on the pleadings and dismissed the writ as untimely. The Court of Appeal held the second petition for reconsideration was unauthorized and the writ untimely on its face, but concluded the limitations period in Lab. Code §6627 is subject to equitable tolling and remanded so Ventura may amend to plead equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a second petition for reconsideration to the Board was permissible | Second petition was proper because Ventura was "newly aggrieved" by a new Board factual finding and hearsay relied on by the Board | Statute and precedent allow only one petition for reconsideration absent new evidence or a party becoming newly aggrieved; no statutory authorization for a second petition here | Second petition was not permitted: Ventura was not newly aggrieved and no new evidence was taken, so second petition had no effect |
| Whether Ventura’s writ of mandate (filed Dec. 15, 2017) was timely | Filing the second petition tolled or extended time; alternatively the second petition was denied by operation of law (45 days) so the writ was timely filed within 30 days after that denial | Section 6627 requires writ within 30 days after denial or filing of decision after reconsideration; Ventura’s writ was 84 days after Board decision and untimely | Writ was untimely on its face (more than 30 days after decision); second petition could not unilaterally extend the limitations period |
| Whether the 30‑day deadline in Lab. Code §6627 is jurisdictional or subject to equitable tolling | The §6627 deadline is like other statutes of limitations and is subject to equitable tolling (pointing to Saint Francis) | Deadline is jurisdictional and cannot be tolled; administrative-review deadlines are strictly construed | §6627 is a statute of limitations and, following Saint Francis, is presumptively subject to equitable tolling (not jurisdictionally immune) |
| Whether dismissal on judgment on the pleadings was proper without leave to amend to plead equitable tolling | Ventura should be allowed to amend to allege facts supporting equitable tolling (timely notice, lack of prejudice, reasonable good faith conduct) | The petition showed untimeliness on its face; no equitable‑tolling facts were pled | Judgment on the pleadings was proper as to the original petition, but leave to amend should be granted to plead equitable tolling; remand for that purpose |
Key Cases Cited
- Saint Francis Memorial Hosp. v. State Dept. of Public Health, 9 Cal.5th 710 (Cal. 2020) (equitable tolling may apply to administrative-review deadlines and sets three-element test: timely notice, lack of prejudice, reasonable good faith conduct)
- Elkins v. Derby, 12 Cal.3d 410 (Cal. 1974) (equitable tolling applies when plaintiff reasonably pursues one remedy in good faith without prejudicing defendant)
- Addison v. State of California, 21 Cal.3d 313 (Cal. 1978) (applied equitable tolling to claims presentation deadlines; articulated three-element test)
- Ginns v. Savage, 61 Cal.2d 520 (Cal. 1964) (statutory periods for mandamus petitions are statutes of limitations, not jurisdictional; leave to amend allowed to allege inducement)
- Pressler v. Donald L. Bren Co., 32 Cal.3d 831 (Cal. 1982) (administrative-review timing may be jurisdictional depending on statutory framework; strict adherence required in some contexts)
- Camper v. Workers’ Comp. Appeals Bd., 3 Cal.4th 679 (Cal. 1992) (time limit in workers’ compensation review statute is jurisdictional)
- Crowe Glass Co. v. Industrial Acc. Com., 84 Cal.App. 287 (Cal. Ct. App. 1927) (general rule: only one rehearing; repeated rehearings would create endless litigation)
- Goodrich v. Industrial Acc. Com., 22 Cal.2d 604 (Cal. 1943) (second rehearing permissible where new evidence or where a party becomes newly aggrieved)
- Zozaya v. Workmen’s Comp. Appeals Bd., 27 Cal.App.3d 464 (Cal. Ct. App. 1972) (second petition for reconsideration allowed when new evidence justifies reconsideration)
- Rucker v. Workers’ Comp. Appeals Bd., 82 Cal.App.4th 151 (Cal. Ct. App. 2000) (due process violation where an agency decided an unaddressed issue without affording parties opportunity to rebut)
- Raam Construction, Inc. v. Occupational Safety & Health Appeals Bd., 28 Cal.App.5th 709 (Cal. Ct. App. 2018) (Code Civ. Proc. §1013 mail extension does not extend Lab. Code §6627 filing deadline)