L & S Framing v. California Occupational Safety and Health Appeals Bd. CA3L & S Framing v. California Occupational Safety and Health Appeals Bd. CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff asserts the trial court (1) erred in permitting the Appeals Board to amend the citation, (2) incorrectly concluded
We affirm. We conclude the Appeals Board properly аllowed the Division to amend the citation, the Appeals Board reasonably deemed the location at
BACKGROUND
The Accident
On August 20, 2016, plaintiff’s employees were working in a subdivision called Highland Grove. Mariano worked for plaintiff and was on the crew working on unit number 49. At that location, a stairway had been built from the ground floor to the second floor. The U-shaped stairway consisted of three segments of stairs. The first segment was to the right as one entered the front door and led part way up from the ground floor. The second segment turned 90 degrees to the left of the first and continued upwards. The third again turned 90 degrees to the left and continued upward until it connected with the second floor. The lowest segment of stairs starting on the ground floor abutted the wall containing the entry door. As they constructed the stairs, plaintiff’s employees also built wooden railings. After the floor on the second floor was covered with plywood decking, but before exterior walls were erected, workers assembled wooden railings around the open edges.
At the top of the stairs on the second floor, there was an L-shaped floor space leading away from the stairs and then perpendicularly 90 degrees to the left. Wooden railings or handrails on each of the two sides were erected after the flooring was put down, one along the landing at the stop of the stairs and another extending perpendicularly to the left for several feet until it met the framing of a wall. But for the railing extending to the left, the floor would have led into an open space above the interior area of the house’s ground floor. At least one witness referred to that railing alternately as a railing and a wall.2 Testimony indicated that, at some point, that railing was to be replaced with, or perhaps completed as, a short interior wall approximately 36 inches high. Once completed, one would be able to see the house’s “volume ceiling” from the second-floor “bonus room” over that short wall.
On the day of the accident, Mariano was on the sеcond floor doing wall installation. The workers removed the railing or handrail that was where the
Mariano was “chalking the strap line with his back towards the unguarded stairwell (inaudible) and he fell to the [first] floor.” Mariano fell 10 feet four inches to the concrete floor on the ground floor below. He sustained a brain injury characterized as a serious injury.
The Division Issues Citations
Ronald Aruejo, a senior safety engineer for the Division, issued plaintiff three general citations and one serious accident-related citation. Only the serious accident-related citation is at issue here.
Before issuing the serious accident-related citation, Aruejo sent a notice of intent. The notice of intent, Cal/OSHA form 1BY (1BY), cited an alleged violation of one of the Division’s Construction Safety Orders. (
The subsequent citation itself set forth the following: “[T]he employer did not provide the exposed sides of a stairway with temporary railings and toe board as prescribed in Section 1620. As a result, an employee was seriously injured when he fell from the exposed side of the stairway and landed approximately 11 feet below onto a concrete floor.” The citation cited section 1626, subdivision (a)(5). According to Aruejo, the language in the citation was from
Plaintiff appealed the citation. A hearing before an ALJ followed. The hearing occurred over four days, November 14 and 15, 2017, and September 5 and 6, 2018.
In its post-hearing brief, the Division again sought to amend the citation, this time to conform to the evidence and allege violation of
The ALJ’s Determination
The ALJ determined the Division failed to establish plaintiff violated
The Appeals Board’s Decision After Reconsideration
The Division filed a petition for reconsideration with the Appeals Board. Among the enumerated issues to be presented, the Division included: [¶] “Was the unguarded side from which Mariano fell the side of a stairway landing?”; [¶] “Was the unguarded side from which Mariano fell the side of a stairwell?”; [¶] “Was the unguarded side from which Mariano fell a floor opening?”; [¶] “Did the ALJ abuse her discretion in denying the Division’s motion to amend Citation 2, Item 1 brought 41 days before the date of the continued hearing?”; and “Did the ALJ abuse her discretion in declining to amend under § 386?”
Plaintiff filed an answer to the Division’s petition for reconsideration. Among other things, plaintiff asserted the Division should not be permitted to amend to allege additional violations, particularly after commencement of the hearing. Plaintiff also argued the location from which Mariano fell was
In its decision after reconsideration, the Appeals Board upheld Citation 2 as amended. The Appeals Board agreed with the ALJ that the area from which Mariano fell was not a stairway landing and therefore concluded plaintiff did not violate
However, the Appeals Board concluded the ALJ erred in denying the Division’s mid-hearing motion to amend Citation 2 to plead in the alternative a violation of
The Appeals Board further concluded the ALJ erred in denying the Division’s post-hearing motion to amend.3 The Appeals Board concluded there was no evidence of
bad faith. The Appeals Board acknowledged the failure to cure a deficiency “at prior allowances to amend” could be deemed to weigh in plaintiff’s favor. The Appeals Board found plaintiff failed to demonstrate prejudice, and further overruled its own prior case law to the extent it could be read as suggesting undue delay alone may be sufficient to warrant denial of a motion to amend. Finally, the Appeals Board found that the ALJ erred in concluding that the amendment would have been futile. In addressing the merits of the amendment, the Appeals Board found plaintiff’s definition of
Denial of Petition for a Writ of Mandate and Appeal
Plaintiff filed a petition for a writ of mandate pursuant to
DISCUSSION
I
Request for Judicial Notice
The Appeals Board filed a motion requesting that we take judicial notice of Appeals Board decisions appended to its motion. The decision on the request for judicial notice was deferred pending calendaring and assignment of the panel.
The Appeals Board’s decisions after reconsideration are precedential; they establish the Appeals Board’s official policy. (Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd. (1985) 167 Cal.App.3d 1232, 1243 [Board counters that cases cited by appellant were decided by ALJs and were not, with exceptions, reviewed by Board, the decisions of which after reconsideration establish official Board policy].) The trial court considered a number of these decisions in its order denying plaintiff’s petition for a writ of mandate.
We grant the Appeals Board’s unopposed request for judicial notice. (
II
Standard of Review
The review by a court considering a petition for a writ of mandate challenging an Appeals Board decision “shall not be extended further than to determine, based upon the entire record which shall be certified by the appeals board, whether: [¶] (a) The appeals board acted without or in excess of its powers. [¶] (b) The order or decision was procured by fraud. [¶] (c) The order or decision was unreasonable. [¶] (d) The order or decision was not supported by substantial evidence. [¶] (e) If findings of fact are made, such findings of fact support the order or decision under review. [¶] Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence.” (
“ ‘ “Our function on appeal is the same as that of the trial court in ruling on the petition for the writ. We must determine whether based on the entire record the [Appeals] Board’s decision is supported by substantial evidence and whether it is reasonable. [Citations.] Where the decision involves the interpretation and application of existing regulations, we must determine whether the administrative agency applied the proper legal standard. [Citation.] Since the interpretation of a regulation is a question of law,
III
Amendment of Citation
A. Plaintiff’s Contentions
Plaintiff asserts the trial court erred in permitting the Appeals Board to amend the citation. Plaintiff asserts the Appeals Board ultimately found a violation based on two regulations that were not correctly pled. According to plaintiff, in doing so, the Appeals Board created exceptions to
B. Authority for Amendments Generally
The Labor Code provides that the “rules of practice and procedure adopted by the appeals board shall be consistent with,” among other things,
Section 371.2, a “rule[] of practice and procedure adopted by the appeals board” (
Section 386, subdivision (a) provides: “The Appeals Board may amend the issues on appeal or the Division action after a proceeding is submitted for decision.” Thus, as a general matter, post-submission amendments are authorized. In fact, “amendments at trial to conform tо proof, ‘if not prejudicial, are favored since their purpose is to do justice and avoid further useless litigation.’ ” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.)
C. Pleading in the Alternative
Plaintiff asserts pleading multiple, alternative violations is prohibited under the Labor Code. Contrary to plaintiff’s contentions, the Division has the option to plead in the alternative. (MTM Builders, Inc. (Cal. OSHA, June 12, 2020, No. 1101230) 2020 CA OSHA App.Bd. Lexis 78, at p. *5 [“the Division failed to exercise its option, which it has exercised in numerous other instances, effectively to plead in the alternative”].) This is consistent with the modern practice in courts. (See Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402 [“When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations”].)
Allowing pleading in the alternative is also consistent with interpretation of the federal Occupational Safety and Health Act. (See Alcala v. Western Ag Enterprises (1986) 182 Cal.App.3d 546, 550 [“It has been held that when California’s laws are patterned on federal statutes, federal cases construing those federal statutes may be looked to for persuasive guidance”]; see also Lujan v. Minagar (2004) 124 Cal.App.4th 1040, 1045 [Cal-OSHA is patterned after federal counterpart].) As the Ninth Circuit stated concerning alternative pleading in OSHA cases: “Nor does pleading in the alternative render the amended complaint insufficiently particular. . . . It helps avoid complications or delays which are contrary to the goal of fair and speedy enforcement of the Act.” (Donovan v. Royal Logging Co. (9th Cir. 1981) 645 F.2d 822, 828-829.)
Nor are we persuaded by plaintiff’s reliance on
D. Mid-hearing Amendment
“[A]mendments to pleadings in the administrative hearing context are liberally allowed.” (Calstrip Steel Corporation (Cal. OSHA, June 30, 2017, Nos. 12-R3D6-1998, 1999) 2017 CA OSHA App.Bd. Lexis 66 at p. *15.) “A request for an amendment that does not cause prejudice to any party may be made by a party or the Appeals Board at any time.” (
There is no indication of bad faith in the record or any specific allegations in plaintiff’s briefs. Nor do the parties address in any substantive way the failure to cure deficiencies at prior allowances to amend.
With regard to prejudice, plaintiff asserted it had been denied notice of the violation because the citation “did not reference any indication of a charged violation of . . . [section] 1632[, subdivision ](b)(1),” and there was “no indication that [plaintiff] had failed to guard a ‘floor opening’ in violation of” that section, and did not reference any “floor opening.” As a result, plaintiff asserted it was “too late to prepare a defense.” Plaintiff also emphasized the passage of time since the accident and the fact that discovery had been completed. According to plaintiff, all of its resources had gone towards investigating and defending against the original citation, and plaintiff further asserted it would be required to expend more resources to develop a defense against an amended citation. In this regard, plaintiff emphasized faded memories of witnesses and witness unavailability.
As the Appeals Board notes, the proposed amendment did not seek to change the factual description of the alleged violation. Instead, it sought to plead, in the alternative and based on all of the same facts, that plaintiff failed to protect the sides and edges of a “stairway landing[]” (
E. Post-submission Amendment
Considering the same factors addressed in part II.D as to the request to amend post-submission pursuant to section 386 to allege a violation of
Moreover, under the heading addressed to amendment of the citation, plaintiff does not advance a substantive argument addressing prejudice beyond emphasizing the passage of time. Instead, plaintiff largely recites the procedural background and argues amendment was statutorily prohibited and amendment to plead in the alternative should not be permitted. Plaintiff also emphasizes the consequences of having a serious violation on its record, which is not germane to prejudice in the context of whether amendment should be granted. Plaintiff in its opening brief only mentions prejudice once in quoting the ALJ and a second time in asserting, in conclusory fashion, that, “[b]y definition, the [Appeals] Board’s finding prejudiced” plaintiff.5
Particularly in the context of a post-hearing request to amend to conform to the proof, the proposed amendment necessarily did not involve any different facts. Instead, it sought to prove a violation that plaintiff failed to install, or keep installed under the
circumstances here, a railing or toeboard around a stairwell (
Lastly, because we conclude, post, the Appeals Board properly found a violation of
IV
Applicability of Sections 1626, Subdivision (a)(2) and 1632, Subdivision (b)(1)
A. Plaintiff’s Contentions
Plaintiff asserts the sections under which the Appeals Board, and the trial court, upheld violations,
Ultimately, the question presented is straightforward, even if the answer to that question is less so: Did the location from which Mariano fell constitute a stairwell within the meaning of
“ ‘The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law’ and is therefore subject to our de novo review. [Citation.] Accordingly, while an administrative agency’s interpretation of its own regulation is entitled to deference appropriate to the circumstances, ‘the ultimate resolution of such legal questions rests with the courts.’ [Citations.] When interpreting an administrative regulation, we follow the same rules of construction that apply to statutes. [Citation.] Thus, our fundamental objective is to ascertain and effectuate the intent of the agency issuing the regulation. [Citations.] [¶] In determining the issuing agency’s intent, we look first to the lаnguage of the regulation itself. [Citation.] ‘ “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the [agency] . . . .” [Citation.] “But the ‘plain meaning’ rule does not prohibit a court from determining whether the literal meaning of a [regulation] comports with its purpose . . . .” [Citation.] Furthermore, “ ‘where a word of common usage has more than one meaning, the one which will best attain the purposes of the [regulation] should be adopted, even though the ordinary meaning of the word is thereby enlarged or restricted and especially in order to avoid absurdity or to prevent injustice.’ ” ’ [Citations.] Moreover, ‘[w]e do not construe a regulation in isolation, but instead read it with reference to the scheme of law of which it is a part, so that the whole may be harmonized and retain effectiveness.’ [Citations.] Finally, when an examination of regulatory language in its proper context fails to resolve an ambiguity, courts may ‘turn to the [regulatory] history of an enactment as an aid to its interpretation.’ ” (Department of Industrial Relations v. Occupational Safety & Health Appeals Bd. (2018) 26 Cal.App.5th 93, 100-101 (Department of Industrial Relations).)
As stated ante, “ ‘ “[a]n agency’s expertise with regard to a statute or regulation it is charged with enforcing entitles its interpretation of the statute or regulation to be given great weight unless it is clearly erroneous or unauthorized. [Citations.] The [Appeals] Board is one of those agencies whose expertise we must respect.” ’ ” (Overaa Construction, supra, 147 Cal.App.4th at pp. 244-245.)
“On appeal we must resolve evidentiary conflicts in favor of the prevailing party, and view the evidence, drawing all reasonable inferences, in the light most favorable to [the prevailing party]. So long as the whole record so viewed reveals in support of the judgment evidence of ponderable legal significance, i.e., evidence which is reasonable, credible, and of solid value,
C. Section 1632, Subdivision (b)(1)
Again,
The dictionary definitions of “opening” upon which the Appeals Board relied included “a hole or empty space through which things or people can pass” (Collins Dict. Online <https://www.collinsdictionary.com/us/dictionary/english/opening> [as of June 22, 2023], archived at: <https://perma.cc/B9AB-RJ8E>); “a hole or space that something or someone can pass through” (Cambridge Dict. Online <https://dictionary.cambridge.org/us/dictionary/english/opening> [as of June 22, 2023], archived at: <https://perma.cc/Z7Y3-8ELE>); and “a void in solid matter; a gap, hole, or aperture” (Dictionary.com <https://www.dictionary.com/browse/opening> [as of June 22, 2023], archived at: <https://perma.cc/522X-NLG8>).
The Appeals Board then concluded that, when plaintiff‘s workers removed the railing, they “create[ed] a hole or empty space from which people or
We conclude the Appeals Board‘s construction and interpretation of
As for the evidence supporting the violation of that section, we have reviewed the hearing testimony. We have also examined the photographic exhibits depicting the site of the accident. At the top of the stairs on the second floor of the house where the accident occurred, an L-shaped floor space led away from the stairs and then perpendicularly to the left. Wooden railings оr handrails on each of the two sides were erected after the flooring was put down, one along the landing at the stop of the stairs and another extending to the left for several feet until it met the framing of a wall. But for the railing to the left of and perpendicular to the topmost group of stairs, the floor would have led into open space above the ground floor. This is the location from which Mariano fell. Testimony indicated that this railing farther from, and perpendicular to, the stairs was to be replaced with, or perhaps completed as, a short interior wall approximately 36 inches high. Once completed, one would be able to see the house‘s “volume ceiling” from the second-floor “bonus room” over that short wall. And, of course, prior to Mariano‘s fall, this railing had been removed.
We conclude substantial evidence supports the Appeals Board‘s determination that the location from which Mariano fell can be characterized as an unguarded floor opening within the meaning of
We note that, “in the particular context of workplace health and safety here at issue, our high court has reviewed the statutory structure and—noting that the relevant provisions ‘speak in the broadest possible terms‘—has concluded that ‘the terms of the legislation are to be given a liberal interpretation for the purpose of achieving a safe working environment.‘” (Department of Industrial Relations, supra, 26 Cal.App.5th at p. 106, quoting Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 312, 313 (Carmona); see also
Plaintiff repeatedly criticizes the Appeals Board and the trial court for what it characterizes as rewriting the regulations, reading into the regulations what the Standards Board omitted, and engaging in underground regulation. For example, plaintiff maintains that “[o]nly by distorting the straightforward regulatory language, inserting terms not included there, and inventing new meanings for construction terminology did the [Appeals Board] reach untenable conclusions, which the trial court implicitly adopted.” However, the mere fact that the trial court, and we, disagree with plaintiff‘s preferred interpretation does not mean there has been improper circumventing of the appropriate rulemaking process. It simply means we are persuaded the Appeals Board‘s conclusions are supported by the language of the regulations.
Plaintiff relies on Cabrillo Economic Development Corp. (Cal. OSHA, Oct. 16, 2014, No. 11-3185) 2014 CA OSHA App.Bd. Lexis 116 (Cabrillo), in asserting the Appeals Board in that case found that, while
Plaintiff also relies on Webcor Builders, Inc. (Cal. OSHA, Jan. 11, 2010, No. 06-3030) 2010 CA OSHA App.Bd. Lexis 7. According to plaintiff, the Appeals Board in
Webcor “held that [section] 1632[, subdivision ](c) – ladderway floor openings or platforms shall be guarded . . . on аll open sides – does not apply to the perimeter of a building floor because it did not lead to or penetrate a floor and by its terms applies where there is a danger of employees falling ‘through’ floor openings.” The Appeals Board in Webcor stated: “By definition, the exterior end or edge of a building‘s floor is not an opening in that floor. Beyond that end or edge there is no floor in which an ‘opening’ can exist. This meaning is reinforced by the language of section 1632[, subdivision ](a), which is concerned with employees, inter alia, falling through a floor, not off it, as one would do at the edge.” (Webcor, supra, 2010 CA OSHA App.Bd. Lexis 7 at p. *6.) Elsewhere, the Appeals Board noted of the subject location: “The ladder was placed on the outside or perimeter of the structure, and thus rested on or connected to the second floor at the exterior edge of that floor.” (Webcor, supra, 2010 CA OSHA App.Bd. Lexis 7 at p. *5.) This is distinguishable from the circumstances here, involving an interior floor edge, or opening.
We conclude the Appeals Board‘s determination was supported by substantial evidence and was reasonable.
D. Section 1626, Subdivision (a)(2)
The location where Mariano was at the time of his fall, the floor next to the opening over the ground floor, was not at the top of the stairs, but a number of feet to the side of the top landing of the stairs. According to John Wagner, plaintiff‘s witness, there was no part of the stairway in the area where Mariano landed on the concrete floor. He estimated the stairs were four to six feet beyond and opposite the wall directly below where Mariano was situated immediately before he fell. He also testified “the stair termination is beyond the volume ceiling area, and that vertical housing is limited to the space that the stairs themselves occupy.” Wagner did not consider the area from which the railing had been removed to be within the stairwell.
The blueprint, which contained a mirror image of the floorplan, depicted the U-shaped stairs consisting of three segments beginning on the ground floor. The first segment of stairs did not begin directly under the edge from which Mariano fell, but several feet opposite that location.
The Appeals Board in its Decision After Reconsideration considered dictionary definitions of “stairwell” other than that submitted by plaintiff, including “a long, vertical passage through a building around which a set of stairs is built” (Cambridge Dict. Online <https://dictionary.cambridge.org/us/dictionary/english/stairwell> [as of June 27, 2023], archived at: <https://perma.cc/BF7F-4LWG>); and “the vertical shaft or oрening containing a stairway” (Dictionary.com <https://www.dictionary.com/browse/stairwell> [as of June 27, 2023], archived at: <https://perma.cc/HA9L-W73B>.) The Appeals Board stated plaintiff‘s “definition of stairwell, which is supported by the Construction Dictionary, is too narrow an interpretation of the term since other dictionaries define stairwell more broadly as a vertical shaft or opening that contains the stairway.” In connection with this observation, the Appeals Board relied on the California Supreme Court‘s direction that “the terms of the legislation are to be given a liberal interpretation for the
The Appeals Board precedents on which plaintiff relies are inapposite. They do not involve stairwells, which are the subject of
We conclude the Appeals Board‘s determination that this area could be considered a stairwell was reasonable and was supported by substantial evidence. It is supported by the Division witnesses’ testimony and exhibits as well as the dictionary definitions upon which the Appeals Board relied. Moreover, this conclusion finds further support in the direction that such provisions are construed liberally to provide protection and safety for workers. (Carmona, supra, 13 Cal.3d at p. 313; Department of Industrial Relations, supra, 26 Cal.App.5th at p. 106.)
V
Section 1716.2
Plaintiff asserts it was
The Appeals Board and the Division respond that, contrary to plaintiff‘s contention that
“applies to the unprotected sides and edges around the exterior edges of a floor or working surface later to be enclosed by framed exterior walls, or whether i[t] appl[i]es to all edges including interior edges created by stairway landings, stairwells and floor openings.”
Joel Foss testified the 15-foot trigger height “only applied to exterior opening -- the exterior fall hazard . . . . So it only applied to where there were exterior walls stood up.”
Based on Foss‘s testimony,
“It is not uncommon for more than one safety order to apply to a particular set of facts. Applying principles of statutory construction, the [Appeals] Board will only find that a more specific safety order is controlling where there is an actual conflict between the two safety orders. [Citation.] Where it is possible to read the safety orders so that they are in harmony with one another, the [Appeals] Board will do so.” (Cabrillo, supra, 2014 CA OSHA App.Bd. Lexis 116 at p. *8.)
In Cabrillo, the employer asserted
“Section 1632 applies to ‘the static hazard of an existing opening‘, which creates both the danger of an employee accidentally walking into the hole, as well as debris sliding onto the lower level, injuring those who may be below. [Citation.] . . . [U]nlike section 1716.2[, subdivision ](f), ‘in addition to fall protection, section 1632[, subdivision ](b) provides protection against other objects, such as tools, falling below the floor, roof, or skylight openings.’ By definition, the area where the employee fell was a stairwell floor opening. [Citation.] As such, section 1632 applies to the opening. While there are overlapping purposes to the two safety orders, the hazards identified by the two orders are not identical, and create no direct conflict. The Board interprets safety orders in a manner consistent with the рurpose of the Act, which is to achieve a safe working environment for all Californians. [Citation.]
“Section 1716.2[, subdivision ](f), which mandates use of guardrails or personal fall protection when framing work is being done over 15 feet, does not create any inherent conflict with the requirement to guard openings found in section 1632. There was no violation of the section, as the employee who fell was not required to wear fall protection at the height he was working at. Nor were the unprotected sides or edges of the building required to be guarded, as the framing was not being done at a height over 15 feet. However, section 1632[, subdivision ](b)(1), which applies to stairwell openings, includes no such height trigger, nor does it exclude framing work from its mandate; the Division properly alleged a violation of this safety order, and the Board finds a violation. “While the Board recognizes that interpreting the safety orders is not always a simple task, in this instance compliance with the terms of section 1632[, subdivision ] (b)(1) by covering or guarding floor openings does not prevent an employer from also complying with section 1716.2. It is both possible, and reasonable, to give concurrent effect to both safety orders. [Citation.] Only where there is an actual conflict between the orders will a more specific safety order control over the more general; that not being shown in this instance, Employer‘s defense therefore fails. [Citation.]
“Additionally, the Board is not convinced that section 1716.2[, subdivision ](f) is more specific than section 1632[, subdivision ](b)(1). Section 1632[, subdivision ](b)(1) requires guarding of ‘[f]loor, roof and skylight openings . . . .’ Section 1504 defines ‘opening’ to include ‘stairway floor openings.’ In short, section 1632[, subdivision ](b)(1) specifically pertains to protecting stairway floor openings such as the one that Martinez fell through. In contrast, section 1716.2[, subdivision ](f) requires guardrails (or other appropriate protection) around ‘all unprotected sides or edges . . .’ over fifteen
feet in height during framing activities. The latter regulation appears to be a more generalized guideline, applicable during the framing process, whether the working floor contains openings or not, and does not specifically аddress the floor opening hazard. Under the circumstances of this case, we conclude there is no conflict among the two regulations, and so Employer must comply with both.” (Cabrillo, supra, 2014 CA OSHA App.Bd. Lexis 116 at pp. *9-12.)
For the reasons expressed in Cabrillo, we conclude
Plaintiff again maintains that the Appeals Board‘s determinations amount to underground regulation and, under a separate point heading entitled, “Consequences of Respondent‘s and Lower Court‘s Rulings,” asserts this
DISPOSITION
The judgment is affirmed. The Appeals Board and the Division shall recover their costs on appeal. (
/s/
HORST, J.*
We concur:
/s/
RENNER, Acting P. J.
/s/
BOULWARE EURIE, J.
* Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.