Fear Not Law Articles: OVERAA CONSTRUCTION v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS PART I

OVERAA CONSTRUCTION v

OVERAA CONSTRUCTION v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

Filed 1/31/07

CERTIFIEDFORPUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

OVERAA CONSTRUCTION,

Plaintiff and Appellant,

CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD,

Defendant and Respondent;

DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH,

Real Party in Interest and Respondent.

C051245

(Super. Ct. No. 04CS00570)

APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. Connelly, J. Affirmed.

Law Office of Robert D. Peterson and Robert D. Peterson for Plaintiff and Appellant.

Stanton, Kay & Watson and Lawrence H. Kay for Construction Employers Association; The Walter Law firm, Fred Walter and Lisa Prince for Associated General Contractors of California as Amici Curiae on behalf of Plaintiff and Appellant.

Douglas G. Nareau, J. Jeffrey Mojcher and James A. Madden, Jr. for California Occupational Safety and Health Appeals Board, Defendant and Respondent.

Michael D. Mason and Amy D. Martin for Department of Industrial Relations, Division of Occupational Safety and Health, Real Party in Interest and Respondent.

WorkSafe Law Center, Frances Schreiberg and Daniel Goldstein for Asian Law Caucus, Centro Legal De La Raza, La Raza Centro Legal and the Legal Aid Society - Employment Law Center, as Amici Curiae on behalf of Defendant and Respondent and Real Party in Interest and Respondent.

In this case involving California's Occupational Safety and Health Act (Labor Code, § 6300 et seq. (Cal/OSHA); Cal. Code Regs., tit. 8, § 330 et seq.^{^[1]}), appellant Overaa Construction (also known as C. Overaa & Co.^{^[2]}) appeals from the trial court's denial of a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5), in which Overaa sought annulment of an administrative decision penalizing Overaa, as â€

Description	Division of Occupational Safety and Health is not required to prove lack of reasonable diligence by citee as an essential element of its prima facie case to establish a general violation of the California Occupational Safety and Health Act or regulations adopted under that act. Citee's claim on writ review that it exercised due diligence, even if supported by the evidence, could not establish that finding of violation was legally erroneous where citee failed to raise due diligence as an affirmative defense before the Cal/OSHA Appeals Board. Administrative hearing record established a lack of reasonable diligence by citee with respect to violation of regulation requiring certain measures to protect workers from danger of cave in during excavation where employee designated as "competent person" responsible for worker safety was aware of the excavation but did not measure it when work started despite rainy weather, which obviously could have affected the depth by loosening soil at the bottom of the trench, and such person apparently never measured the depth with a measuring device but merely estimated its depth prior to the day of the Cal/OSHA inspection.
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