Filed 10/4/21 Lion Farms v. Cal Occupational Safety and Health etc. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

LION FARMS, LLC,

Plaintiff and Appellant,

v.

CALIFORNIA OCCUPATIONAL SAFETY 

AND HEALTH APPEALS BOARD,

Defendant and Respondent.

CALIFORNIA DEPARTMENT OF 

INDUSTRIAL RELATIONS, DIVISION OF 

OCCUPATIONAL SAFETY AND HEALTH,

Real Party in Interest and Respondent.

F079563

(Super. Ct. No. MCV075788)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Michael J. 

Jurkovich, Judge.

Law Offices of Brian C. Leighton and Brian C. Leighton; Bertram T. Kaufmann

for Plaintiff and Appellant.

J. Jeffrey Mojcher, Andia Farzaneh, Autumn Gonzalez and Aaron R. Jackson for 

Defendant and Respondent.

Christopher P. Grossgart and Deborah A. Bialosky for Real Party in Interest and 

Respondent.

-ooOoo-
2.

Real party in interest and respondent, the California Department of Industrial 

Relations, Division of Occupational Safety and Health (the Division) cited plaintiff and 

appellant Lion Farms, LLC (Lion) for violations of workplace safety regulations. The 

regulations required a workplace hazard evaluation certified in writing and the

identification and use of situationally appropriate personal protective equipment (PPE). 

The investigation leading to the citations followed the death of a Lion employee while 

using an all-terrain vehicle (ATV) on the job. The Division also imposed a $18,560 

combined penalty on Lion for those violations. Lion contested the citations and penalties 

before defendant and respondent the California Occupational Safety and Health Appeals 

Board (the Board).1 The Board affirmed the citations and penalties generally, though it 

reduced the combined penalty to $14,625. Lion then filed a petition for a writ of 

administrative mandate in the Madera County Superior Court (the trial court). The trial 

court ultimately denied Lion’s petition for a writ of administrative mandate. Lion now 

appeals from that judgment, and contends the trial court applied an improper standard of 

review of the Division’s decisions, incorrectly denied Lion’s belated due process-based 

argument, and erroneously disallowed Lion’s invocation of the independent employee 

action defense. Finding the trial court properly denied Lion’s petition for writ of 

administrative mandate, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Lion owned and operated a dried-on-the-vine raisin vineyard in Madera County 

(Cottonwood Ranch), at which Lion’s employee Isaac Rey Barrientos worked. On 

June 10, 2015, Barrientos was killed when he lost control of the Lion-owned ATV he was 

1 The Division and the Board are two separate administrative agencies. The Board 

has responsibility for resolving appeals filed by parties related to citations issued by the 

Division. (Lab. Code, §§ 6600, 6600.5; Rick’s Electric, Inc. v. Occupational Safety &

Health Appeals Bd. (2000) 80 Cal.App.4th 1023, 1027 (Rick’s Electric).) The Division 

was the real party in interest in the underlying writ proceedings in the trial court. The 

Board was the respondent in the underlying writ proceedings.
3.

riding in the vineyard to service Lion’s portable toilets, and the ATV’s right front tire hit 

an eye ring grape stake, ejecting Barrientos off of the vehicle. The June 12, 2015,

Merced County Sheriff’s Office Report of Autopsy and the Madera County Certificate of 

Vital Record listed “blunt impact thoracospinal injuries” (not a head injury) as 

Barrientos’s cause of death. Barrientos was not wearing a helmet at the time of his fatal 

accident. 

Division Associate Safety Engineer Randy Chase thereafter investigated 

Barrientos’s accident. Chase knew of a number of fatalities occurring in the Fresno 

Division involving ATV’s, including one fatality investigated by his office where a 

helmet was not worn and head injuries occurred. While Barrientos’s death was not due to 

the absence of head protection, Chase found that wearing helmets while riding ATV’s 

would reduce the inherent risk of head injury. However, Chase also found that Lion had 

no written certification of having conducted a workplace hazard assessment and no 

requirement that its employees wear helmets as PPE while riding ATV’s.

On October 16, 2015, based on Chase’s investigatory conclusions, the Division 

cited Lion for violating the Division’s workplace safety regulations set forth in title 8 of 

the California Code of Regulations2—specifically, section 3380, subdivision (f)(2) 

(hereafter section 3380(f)(2)), for not having a written certification of a workplace hazard 

assessment (the General Citation), and section 3380, subdivision (f)(1)(A) (hereafter 

section 3380(f)(1)(A)), for not selecting and requiring the use of the types of PPE that 

would protect the affected employees from the hazards identified in a workplace hazard 

2 The Division promulgated its workplace safety regulations in subchapter 7 of 

chapter 4 of title 8 of the California Code of Regulations, under “General Industry Safety 

Orders.”

All subsequent code or section references are to the California Code of 

Regulations, title 8 (“Industrial Relations”), unless otherwise specified.
4.

assessment (the Serious Citation), specifically helmets while employees rode ATV’s.3 

The Division fined Lion $560 for the General Citation and $18,000 for the Serious

Citation. 

On October 26, 2015, Lion challenged the citations and the penalties by filing an 

appeal with the Board. 

Thereafter, the parties conducted mutual discovery. Lion engaged the services of 

a retained industrial safety expert, William D. Guentzler, Ph.D., who opined in his 

prepared report that a helmet would represent a hazard in itself and should never be worn 

while riding an ATV in and under the raisin vine “canopy” of hanging fruit and canes, as 

a helmet would “most probably become tangled within the vines and pull the rider off the 

vehicle, causing severe injury or death.” 

On October 27, 2016, and March 2, 2017, the Board conducted hearings before 

Administrative Law Judge Kevin J. Reedy (the ALJ) on Lion’s challenges to the 

Division’s two citations and two penalties against Lion. Following the hearings, the ALJ 

upheld the citations, and particularly the “serious” classification of the second citation, 

but did reduce the amount of the penalties imposed to $14,625 ($1,125 for the General 

Citation, and $13,500 for the Serious Citation). 

On May 17, 2017, Lion filed a petition for reconsideration with the Board. 

On June 30, 2017, the Board denied Lion’s petition for reconsideration and 

affirmed the Division’s two workplace safety citations of Lion. 

On July 28, 2017, Lion filed its verified petition for writ of administrative mandate 

with the trial court, and lodged trial exhibits in support thereof, naming the Board as the 

sole defendant. 

3 Sections 3380(f)(2) and 3380(f)(1)(A) fall under the code’s “Safe Practices and 

Personal Protection; Personal Protective Devices” group of “General Industry Safety 

Orders.”
5.

On November 21, 2017, Lion obtained leave from the trial court and filed its first 

amended verified petition, adding the Division as a real party in interest and additional 

defendant. 

On November 21, 2017, November 2, 2018, and February 8, 2019, following

briefing by the parties, the trial court held hearings on Lion’s first amended verified 

petition for writ of administrative mandate. 

The trial court issued its tentative decision on March 26, 2019, denying Lion’s 

petition for writ of administrative mandate pursuant to California Rules of Court, 

rule 3.1590(c)(1). 

On April 10, 2019, Lion objected to the trial court’s tentative decision, which 

objections were considered by the trial court. 

On April 23, 2019, the trial court overruled all of Lion’s objections to the tentative 

decision. 

On May 23, 2019, after hearing and considering the evidence presented, the 

administrative record, and the arguments of counsel, the trial court denied Lion’s petition 

for writ of administrative mandate. The tentative decision became the court’s final 

decision. 

On June 7, 2019, the trial court issued its notice of entry of judgment on Lion’s 

petition for writ of administrative mandate. 

On June 25, 2019, Lion filed its notice of appeal. 

DISCUSSION

Lion contends that for several reasons the record in the instant case reveals the 

trial court improperly denied Lion’s petition for writ of administrative mandate and 

improperly upheld the Division’s imposition of its citations and penalties on Lion. 

Broadly, Lion claims that it was wrongfully denied an opportunity to assert as a defense 

to the District’s citations the allegation that section 3380 of the subject workplace safety 

regulations—as applied—was violative of Lion’s substantive due process rights because 
6.

it was unconstitutionally vague and ambiguous. Lion also claims that the penalties

imposed on it by the Division were excessive. Finally, Lion claims that it should have 

been able to assert the independent employee action defense to the citations it received. 

As a threshold matter, we must determine the appropriate standard of review to be 

utilized in our review of all of the Board’s (and trial court’s) decisions. We then turn our 

attention to the substance of Lion’s arguments.

I. Standard of Review

Lion contends we must apply the de novo standard of review to all of the issues he 

raises on appeal. We disagree.

A. Law

It is settled that pure questions of law, such as the constitutional validity of a 

statute, are reviewed de novo. (Stuard v. Stuard (2016) 244 Cal.App.4th 768, 781.) 

When considering a claim that a facially valid statute has been applied in a 

constitutionally impermissible manner, “the court evaluates the propriety of the 

application on a case-by-case basis to determine whether to relieve the defendant of the 

sanction.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) A substantive due

process violation “requires more than ‘ordinary government error,’ and the ‘ “ ‘arbitrary 

and capricious’ ” ’ standard applicable in other contexts is a lower threshold than that 

required to establish a substantive due process violation.” (Las Lomas Land Co., LLC v. 

City of Los Angeles (2009) 177 Cal.App.4th 837, 855–856.) “Determining if the trial 

court adhered to a constitutional principle is solely a question of law.” (Conservatorship 

of Christopher A. (2006) 139 Cal.App.4th 604, 610.)

Petitions for writ of administrative mandate, however, are not always subjected to 

de novo review. (See Akella v. Regents of University of California (2021) 61 

Cal.App.5th 801, 814, fn. 6.) Code of Civil Procedure section 1094.5, the state’s 

administrative mandate statute, governs judicial review of adjudicatory decisions by 

administrative agencies, such as the Board in this case. (Young v. City of Coronado
7.

(2017) 10 Cal.App.5th 408, 418.) The standard of review in the trial court and on appeal 

on petition for writ of administrative mandate may be either substantial evidence or de 

novo, depending on the nature of the right affected by the administrative decision in 

question. (Code Civ. Proc., § 1094.5 subd. (c); Akella, at p. 814, fn. 6.) If the decision of 

an administrative agency will substantially affect a “ ‘fundamental vested right,’ ” then 

the trial court must not only examine the administrative record for errors of law, but must 

also apply the de novo standard to the evidence on petition for writ of administrative 

mandate. (Akella, at p. 814, fn. 6.) Where a fundamental vested right is not implicated, 

however, “[w]e review the factual basis behind the agency’s order or decision for 

‘substantial evidence in ... light of the whole record.’ ” (Id. at pp. 813–814, citing Code 

Civ. Proc., § 1094.5, subd. (c).) “An abuse of discretion is established if the 

administrative agency has failed to proceed ‘in the manner required by law, [or] the 

[agency’s] order or decision is not supported by the findings, or the findings are not 

supported by the evidence.’ ” (Akella, at p. 813.)

In applying the substantial evidence standard of review, we focus on the decision 

of the agency rather than that of the trial court and “ ‘ “answer the same key question as 

the trial court[:] ... whether the agency’s findings were based on substantial 

evidence.” ’ ” (Colony Cove Properties, LLC v. City of Carson (2013) 220 Cal.App.4th 

840, 866.) This requires the reviewing court to consider all relevant evidence in the 

administrative record and view that evidence in the light most favorable to the agency’s 

findings, drawing all inferences in support of those findings. (Do v. Regents of 

University of California (2013) 216 Cal.App.4th 1474, 1490.) The reviewing court does 

not substitute its own findings and inferences for that of the agency. (McAllister v. 

California Coastal Com. (2008) 169 Cal.App.4th 912, 921.) “Only if no reasonable 

person could reach the conclusion reached by the administrative agency, based on the 

entire record before it, will a court conclude that the agency’s findings are not supported 

by substantial evidence.” (Do, at p. 1490; accord McAllister, at p. 921.) “[N]either [the 
8.

trial nor the appellate] court may reweigh the evidence, and we are bound to consider the 

evidence in the light most favorable to the Board, giving it every reasonable inference 

and resolving all conflicts in its favor.” (Stanton v. State Personnel Board (1980) 105 

Cal.App.3d 729, 736.) 

Further, an agency’s interpretation of its own regulations is entitled to “great 

weight”; “ ‘ “[w]e must determine whether based on the entire record the Board’s 

decision is supported by substantial evidence and whether it is reasonable.” ’ ” (Overaa 

Construction v. California Occupational Safety & Health Appeals Bd. (2007) 147 

Cal.App.4th 235, 244; accord, Rick’s Electric, supra, 80 Cal.App.4th at p. 1033.) 

“ ‘ “ ‘Evidence is substantial if any reasonable trier of fact could have considered it 

reasonable, credible and of solid value.’ [Citation.] Additionally, a reviewing court ‘may 

look to the findings in [the administrative agency’s] decision for guidance in determining 

whether the trial court’s judgment is supported by substantial evidence.’ ” ’ ” (Sandarg 

v. Dental Bd. of California (2010) 184 Cal.App.4th 1434, 1440 (Sandarg).)

As the appellant, Lion bears the burden of proof of establishing its asserted errors 

on appeal. (Evid. Code, § 500; Barrie v. California Coastal Com. (1987) 196 Cal.App.3d 

8, 16.) But we must affirm the trial court’s ruling if there is any basis in the record for 

doing so. (Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 966.) “No rule 

of decision is better or more firmly established by authority, nor one resting upon a 

sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, 

will not be disturbed on appeal merely because given for a wrong reason. If right upon 

any theory of the law applicable to the case, it must be sustained regardless of the 

considerations which may have moved the trial court to its conclusion.” (Davey v. 

Southern Pacific Co. (1897) 116 Cal. 325, 329.)

B. Analysis

Lion’s due process claim on appeal—his assertion that section 3380 (particularly 

with respect to PPE required in the context of ATV usage in agricultural settings), as 
9.

applied on the facts and circumstances of this case violated Lion’s substantive due 

process protections because the regulations were unconstitutionally vague and 

ambiguous—is a question of law that we review de novo when the facts are undisputed. 

(See Conservatorship of Christopher A., supra, 139 Cal.App.4th at p. 610.) 

As for all of Lion’s remaining issues, however, we conclude the substantial 

evidence standard of review, rather than the de novo standard of review, is most 

appropriate because they are not pure questions of law and because Lion has not 

identified a fundamental vested right that is affected by the administrative decisions of 

the Division or the Board. Perhaps the prototypical fundamental vested right recognized 

by California courts as such is the right to practice one’s profession. (Sandarg, supra, 

184 Cal.App.4th at p. 1440; see Green v. Board of Dental Examiners (1996) 47 

Cal.App.4th 786, 795.) In this case, no such fundamental vested right akin to the right to 

practice one’s profession is implicated by the Division’s decisions regarding Lion’s 

workplace safety regulation noncompliance. Certainly, Lion’s ability to continue its 

operations as a vineyard was never jeopardized by any of the Division’s citations or 

penalties. Lion never adduced any evidence that the Division’s proposed penalties would 

deprive Lion of a fair profit or annihilate the value of Lion’s property or deprive Lion of 

its use or value or otherwise become confiscatory in nature. Lion asserts that it has a 

fundamental vested right to be free of unwarranted citations and excessive penalties, but 

tellingly does not provide any authority for such an alleged fundamental vested right, let 

alone past examples of the same being judicially recognized. The term “fundamental 

vested right” denotes a right that is already possessed as opposed to a right that is merely 

sought. (Kalway v. City of Berkeley (2007) 151 Cal.App.4th 827, 832.) The mere fact 

that Lion strongly disagrees with the Division’s analysis and citations does not elevate

the level of the dispute to one involving a fundamental vested right. Additionally, 

matters of purely economic concern (e.g., the amounts of penalties levied for regulatory 

violations) do not amount to fundamental vested rights that trigger the de novo standard 
10.

of review. (Ogundare v. Department of Industrial Relations (2013) 214 Cal.App.4th 822, 

828–829.)

Lion’s contention on appeal that de novo review is “a more appropriate standard 

of review of an agency’s interpretation of a statute, and the same should apply to a 

regulation” is itself an admission that Lion seeks to extend its cited authority, County of

Sonoma v. Cohen (2015) 235 Cal.App.4th 42, by analogy, rather than by precedent. 

Neither of Lion’s assertions is persuasive; the issues in this case, while certainly 

important to Lion, do not in and of themselves constitute any fundamental vested right. 

Moreover, Cohen, which Lion relies on to support a “weak deference” standard of 

review, itself relied on the decision of Spanish Speaking Citizens’ Foundation v. Low 

(2000) 85 Cal.App.4th 1179, which dealt not with a straightforward regulatory 

interpretation, but rather with the question of whether a regulation was consistent with its 

authorizing statute. That is a factual distinction that makes an analytical difference. The 

type of statutory construction that was at issue in the Cohen and Low cases is simply not 

the type of statutory interpretation that is at issue in the instant case. Consequently, the 

substantial evidence standard of review is most appropriate in this instance. (Malibu 

Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 367.)

II. Due Process Claim

Lion contends section 3380 was unconstitutionally vague and ambiguous, as 

applied to Lion, because the Board and the trial court interpreted the regulation in a 

manner that failed to provide Lion with notice that helmets for ATV drivers were 

mandated by the regulation. Lion claims it effectively raised this due process claim 

before the Board, and thus preserved the issue in both the trial court and this court. The 

trial court ruled Lion did not and was therefore statutorily precluded from raising the 

claim at the trial court level. We agree with the trial court. We further conclude Lion 

forfeited the issue in this court, and in any event, the claim is meritless.
11.

A. Forfeiture in the Trial Court

Labor Code sections 6614 through 6619 establish the bases and procedures for 

filing petitions for reconsideration with the Board. Labor Code section 6617 is relied 

upon by all parties to this matter. Labor Code section 6617 states in full:

“The petition for reconsideration may be based upon one or more of the 

following grounds and no other:

“(a) That by such order or decision made and filed by the appeals 

board or hearing officer, the appeals board acted without or in excess of its 

powers.

“(b) That the order or decision was procured by fraud.

“(c) That the evidence does not justify the findings of fact.

“(d) That the petitioner has discovered new evidence material to 

him, which he could not, with reasonable diligence, have discovered and 

produced at the hearing.

“(e) That the findings of fact do not support the order or decision.”

Lion contends that a challenge to the Board’s decision based upon a violation of 

the substantive due process rights of Lion would have been beyond the ambit of 

challenges allowed by Labor Code section 6617; however, subdivision (a) thereof would 

have allowed such a challenge, had Lion taken it up by way of its petition for 

reconsideration. Axiomatically, any decision by the Board or a hearing officer applying a 

statute in violation of the due process clause would be a decision in excess of the powers 

of the Board or a hearing officer. The substantive due process clause on which Lion 

relies protects against arbitrary government action. (County of Sacramento v. Lewis 

(1998) 523 U.S. 833, 845, abrogated on other grounds by Saucier v. Katz (2001) 533 U.S. 

194.) A substantive due process violation requires some form of outrageous or egregious 

conduct constituting “a true abuse of power.” (Galland v. City of Clovis (2001) 24 

Cal.4th 1003, 1032.) Inherently, if a governmental actor is engaged in some form of 
12.

outrageous or egregious conduct constituting a “true abuse of power,” such conduct 

would be in excess of the scope of that governmental actor’s legitimate powers.

In addition to Labor Code section 6617, Labor Code section 6616 is instructive on 

the scope of issues to be presented by way of a petition for reconsideration of a hearing 

officer’s decision. Labor Code section 6616 states in pertinent part: “The petition for 

reconsideration shall set forth specifically and in full detail the grounds upon which the 

petitioner considers the final order or decision made and filed by the appeals board or a 

hearing officer to be unjust or unlawful, and every issue to be considered by the appeals 

board.” (Italics added.)

By the admission of Lion’s own counsel, “the due process stuff” was not 

contained in Lion’s petition for reconsideration before the Board. Lion attempts to 

explain this failure to present the due process issue to the Board by claiming it would 

have been futile for Lion to raise any due process claims before either the ALJ or the 

Board because neither had the authority to declare section 3380 unconstitutionally vague 

or a violation of Lion’s substantive due process rights as applied. This claim is 

unavailing as it is predicated upon an incorrect reading of the ambit of the authority of 

both the ALJ and the Board. Regulatory entities, such as the ALJ and the Board, are 

vested with the authority to declare regulations such as section 3380 to be 

unconstitutional. “[O]n principle, an invalid regulation should be vulnerable to attack at 

the administrative level. This is consistent both with precedent and common sense. The 

legislative acceptance of this principle is clear.” (Woods v. Superior Court (1981) 28 

Cal.3d 668, 680.) “The practical effect of prohibiting an administrator from nullifying an 

invalid regulation of his own making would be to require the invocation of a judicial 

remedy in all such cases. Such conceptual rigidity is ill-advised. The general principle 

that courts should not be burdened with matters which can be adequately resolved in 

administrative fori, frequently expressed in the rule requiring exhaustion of 

administrative remedies [citations], is founded at least in part on the wisdom of the 
13.

efficient use of governmental resources. [Citation.] Such use serves the twin goals of 

avoiding delay and unnecessary expense in vindication of legal rights.” (Id. at pp. 680–

681.) Administrative law judges have a right (indeed, at times a duty) to declare 

regulations adopted by administrative agencies such as the Division invalid. (Conlan v. 

Bonta (2002) 102 Cal.App.4th 745, 761.) 

Lion is correct that the California Constitution, Article III, section 3.5 states that 

“[a]n administrative agency, including an administrative agency created by the 

Constitution or an initiative statute, has no power: [¶] ... [¶] (b) To declare a statute 

unconstitutional.” Section 3380, however, is not a statute; it is a regulation, as it resides 

in the California Code of Regulations, and not in a substantive or procedural code. 

Regulations may interpret statutes, but regulations are legally distinct from statutes. 

(Missionary Guadalupanas of Holy Spirit, Inc. v. Rouillard (2019) 38 Cal.App.5th 421, 

432–433.) Statutes are passed by legislatures; regulations are promulgated by 

administrative agencies. Regulations are not statutes, and the fact that both may properly 

be regarded as “laws” in a broad sense is not germane to the question of whether an 

administrative board can declare an administrative regulation promulgated by a 

regulatory agency (i.e., the same branch of government) unconstitutional when such a 

regulatory board cannot declare a statute enacted by a legislature (i.e., a separate branch 

of government) unconstitutional. A court could certainly review the ruling of an 

administrative board regarding the constitutionality of an administrative regulation, but 

that does not preclude the administrative board from being able to make such a ruling in 

the first place.

Accordingly, here, the Board did have the authority to evaluate and opine as to the 

constitutionality of section 3380, had it been asked to do so by Lion. The Board, 

however, was not asked to do so by Lion in its petition for reconsideration. In addition to 

the words “due process” themselves not being utilized by Lion in its petition for 

reconsideration, the substance of Lion’s arguments against the citations at that juncture 
14.

did not inherently or inevitably invoke the concept of substantive due process, as Lion 

suggests.

Since Lion did not effectively raise any due process claims before the Board when 

it could have done so, Lion’s pleadings before the trial court were (as the trial court 

correctly held) untimely and insufficient to invoke any due process claims Lion might 

otherwise have asserted in that forum as well.

B. Forfeiture on Appeal

Lion argues that even if it failed at both the Board and trial court levels to raise the 

due process claim, Lion may do so for the first time on appeal. We disagree and 

conclude Lion has forfeited the issue here as well.

A party typically forfeits constitutional issues not raised in earlier civil 

proceedings. (Hale v. Morgan (1978) 22 Cal.3d 388, 394; Neil S. v. Mary L. (2011) 199 

Cal.App.4th 240, 254, superseded by statutory amendment on other grounds in V.S. v. 

M.L. (2013) 222 Cal.App.4th 730, 735, fn. 5.) More particularly, in the administrative 

law context, Labor Code section 6618 provides that issues not raised in a petition for 

reconsideration are waived. Specifically, Labor Code section 6618 states that a 

“petitioner for reconsideration shall be deemed to have finally waived all objections, 

irregularities, and illegalities concerning the matter upon which reconsideration is sought 

other than those set forth in the petition for reconsideration.” (Lab. Code, § 6618; italics 

added.) Lion regards Labor Code section 6618 as a “valid code section,” but contends 

that Lion actually raised a substantive due process argument via its petition for 

reconsideration before the Board. In doing so, Lion tacitly acknowledges that if it did not 

in fact raise the due process argument via its petition for reconsideration, section 6618 

would operate to foreclose Lion from raising its due process argument for the first time 

on appeal, via its reply brief to the trial court. By Lion’s own admission, however, it 

raised no due process argument via its petition for reconsideration; section 6618 therefore 
15.

operates to foreclose Lion from raising its due process argument for the first time on 

appeal. The Board and the trial court were correct in so ruling against Lion.

C. The Claim on its Merits

Even assuming arguendo Lion did not forfeit the claim that section 3380 was 

unconstitutionally vague and ambiguous as applied, we conclude the claim is 

nevertheless without merit.

An administrative regulation violates due process of law if it forbids or requires 

the doing of an act in terms so vague that persons of common intelligence must 

necessarily guess at its meaning and differ as to its application. (Cranston v. City of 

Richmond (1985) 40 Cal.3d 755, 763–764, citing Connally v. General Const. Co. (1926) 

269 U.S. 385, 391.) Moreover, the regulation cannot be “unreasonable, arbitrary, or 

capricious” and “the means selected shall have a real and substantial relation to the object 

sought to be attained.” (Nebbia v. New York (1934) 291 U.S. 502, 525.) In considering a 

vagueness challenge to an administrative regulation, we do not view the regulation in the 

abstract; rather we consider whether it is vague when applied to the complaining party’s 

conduct in light of the specific facts of the particular case. (Cranston, at p. 765.) A 

regulation is not unconstitutionally vague simply because alternative constructions may 

be proposed. (People v. Anderson (1972) 29 Cal.App.3d 551, 561.) Standards under a 

regulation may be refined and developed on a case-by-case basis. (Ford Dealers Assn. v. 

Department of Motor Vehicles (1982) 32 Cal.3d 347, 367.) “ ‘[T]his is neither unusual 

nor unconstitutional.’ ” (Ibid.)

Where, as here, we review the interpretation and application of an administrative 

regulation by the regulatory agency charged with enforcing the regulation, we must 

respect the subject matter expertise of the agency. (Lusardi Construction Co. v. 

California Occupational Safety & Health Appeals Bd. (1991) 1 Cal.App.4th 639, 645 

(Lusardi).) The agency’s interpretation of the regulation at issue must be upheld unless it 
16.

is clearly erroneous or unauthorized. (Ibid.) Under these standards, we are compelled to 

reject Lion’s contentions of unconstitutional vagueness and ambiguity.

In Teichert Construction v. California Occupational Safety & Health Appeals Bd.

(2006) 140 Cal.App.4th 883, a construction company challenged section 1592, 

subdivision (e) (like section 3380, a workplace safety regulation) on the basis that it was 

unconstitutionally vague and ambiguous (the same basis upon which Lion here 

challenges section 3380). The Teichert court embraced the following standards when 

evaluating whether a statute violated due process: (1) a statute violates due process if it 

forbids or requires the doing of an act in terms so vague that persons of common 

intelligence must necessarily guess at its meaning and differ as to its application; (2) in 

considering a vagueness challenge to an administrative regulation, a reviewing court does 

not view the regulation in the abstract, rather, it considers whether it is vague when 

applied to the complaining party’s conduct in light of the specific facts of the particular 

case; (3) a regulation is not unconstitutionally vague simply because alternative 

constructions may be proposed (because standards under a regulation may be refined and 

developed on a case-by-case basis); (4) where a reviewing court reviews the 

interpretation of a regulation by the board charged with enforcing the regulation, the 

reviewing court must respect the subject matter expertise of the board. (Teichert, at 

pp. 890–891.) 

Under Teichert’s standards, the Board’s interpretation of section 3380 must be 

upheld. Section 3380(f)(1)(A)’s requirement that employers assess their workplaces to 

determine if hazards necessitating the use of PPE are present or likely to be present (and 

if such a determination is affirmatively made, select and make available the types of PPE 

that will protect affected employees from the hazards identified in the workplace 

assessment) is not impermissibly vague. A reasonable and practical construction of the 

regulation puts businesses like Lion that have employees who utilize ATV’s in the 

workplace on notice that (1) they must protect their employees from the hazards inherent 
17.

in riding ATV’s, and (2) requiring helmets be worn when employees ride ATV’s is an 

efficacious and obvious way of affording employees such protection. Lion could (and 

should) have known with the exercise of reasonable diligence of the intrinsic head injury 

hazards of riding ATV’s in agricultural settings, and that protective helmets would be an 

evident way to protect employees from such head injuries.

The fact that Barrientos’s lack of a helmet would not have protected him from 

death in the circumstances of the accident which claimed his life is immaterial to the 

issue of whether it is reasonable or not to interpret section 3380(f)(1)(A) as requiring 

helmets be worn by ATV riders in agricultural workplace settings. Instead, it is the 

general risk of serious injury or death inherent in not requiring helmets to be worn by 

ATV riders in Lion’s farmlands and vineyards that underlies the Board’s finding of a 

“serious” violation of section 3380(f)(1)(A). Lion was not cited for Barrientos’s death; it 

was cited for failing to establish a PPE requirement that would adequately protect its 

employees who rode ATV’s on the job from injuries that could be mitigated or prevented 

by the wearing of helmets (e.g., head injuries, abrasions, and cuts).

Moreover, if as Lion asserts, the regulation at issue really was as “extremely vague 

and ambiguous” as claimed, while at the same time being applicable to “millions of 

employers in California,” including regarding “the use of ATVs on the thousands of 

farms in California,” then it stands to reason that this issue of an alleged lack of due 

process fair notice would have been raised (and resolved) at some point over the period 

of years since 1974 that section 3380 has been the law of California. Caselaw is devoid 

of any such issue being resolved in that manner, however. This strongly suggests that no 

such assertions have historically been upheld regarding section 3380, which in turn 

suggests a lack of merit to such claims.4

4 Of note, California’s Mandatory Motorcycle Helmet Law, Vehicle Code 

section 27802 et seq., has been repeatedly challenged as unconstitutionally vague, and 
18.

We also find section 3380(f)(1)(A) to be reasonable, and neither arbitrary nor 

capricious as applied; we further find that the means it utilizes have a real and substantial 

relation to the object sought to be attained, namely, workplace safety. (See Nebbia v. 

New York, supra, 291 U.S. at p. 525.)

Thus, even if Lion’s due process claim regarding section 3380(f)(1)(A) had been 

properly presented to the trial court, it would not have been successful.

III. Amounts of Penalties and Characterization of Violation as “Serious”

On appeal, Lion challenges both the amounts of the penalties that were ultimately 

levied against it by the Division for the General and Serious Violations, as well as the 

characterization of Lion’s violation of section 3380(f)(1)(A) as “serious.” We find that 

substantial evidence supports both of the penalties and the characterization of the

section 3380(f)(1)(A) violation as “serious,” and therefore we reject Lion’s challenges in 

this regard.

A. General Violation of Section 3380(f)(2)

Lion objects to the amount of the penalty for the General Violation of 

section 3380(f)(2), which was originally $560, then increased by the Board to $1,125.

Section 3380(f)(2) states in pertinent part: “The employer shall verify that the

required workplace hazard assessment has been performed through a written certification 

that identifies the workplace evaluated; the person certifying that the evaluation has been 

performed; the date(s) of the hazard assessment; and, which identifies the document as a 

certification of hazard assessment.”

Substantial evidence in the record demonstrates that Lion failed to verify through a 

written certification that it had performed a workplace hazard assessment related to the 

operation of ATV’s at its worksites. By Lion’s own admission, in fact, it did not have a 

has been consistently upheld in the face of such challenges. (People v. Elkins (1992) 12 

Cal.App.4th Supp. 1, 5–6; Buhl v. Hannigan (1993) 16 Cal.App.4th 1612, 1622–1623.)
19.

written workplace hazard assessment certification, as required by section 3380(f)(2). 

Lion conceded that even its ATV safety training acknowledgement did not comply with 

section 3380(f)(2) and did not constitute a “written certification” as required by that 

regulation. Logoluso, Lion’s ranch manager, claimed that he had prepared some sort of 

written job hazard assessment for Lion in 2005, but could not recall at the hearing the last 

time he had seen such a document. Consequently, Lion has conceded that it violated 

section 3380(f)(2), and that, regarding the General Citation, it is only the amount of the 

penalty that Lion is challenging, not the imposition of the citation itself. 

Division Associate Safety Engineer Chase initially assessed the penalty for Lion’s 

violation of section 3380(f)(2) at $560, based upon Chase’s experience that general 

violations with a rated “medium” severity historically carried a penalty of $1,500, which 

amount was then reduced by a stipulated 15 percent for Lion’s demonstrated good faith, 

as well as an additional stipulated 10 percent based on Lion’s history of a lack of safety 

citations, plus an employer abatement credit of $565. Upon review, the Board increased

this monetary penalty, to the current $1,125 by virtue of Lion’s failure to provide the 

Division with the necessary proof of abatement to warrant the $565 reduction of the 

penalty. Chase explained at great length and in great detail during the Board’s hearing on 

this matter how he calculated the amount of the penalty for Lion’s General Citation, and 

the Board explained in great length and detail its rationale for its increase of the penalty. 

As we have noted, the Board’s interpretation of a particular regulation has great 

weight on appeal, and will be followed unless it is clearly erroneous. (Davey Tree 

Surgery Co. v. Occupational Safety & Health Appeals Bd. (1985) 167 Cal.App.3d 1232, 

1243; Lusardi, supra, 1 Cal.App.4th at p. 645.) This deference is based on the 

specialized knowledge the Board possesses. (Davey Tree, at p. 1244.) Courts must 

therefore respect the Board’s interpretation of these regulations. (Overaa Construction v.

California Occupational Safety & Health Appeals Bd., supra, 147 Cal.App.4th at 

p. 245.)
20.

In this case, substantial evidence supported the analysis and conclusions of the 

Division with respect to its characterization of Lion’s violation of section 3380(f)(2) as 

“general,” and the $560 in penalties it levied for such violation, as well as the Board’s 

disallowing of the $565 abatement credit in light of no demonstrated abatement efforts by 

Lion. (Code Civ. Proc., § 1094.5, subds. (b), (c).) Further, we find nothing in the factual 

record or in the arguments of counsel sufficient to disturb the considered opinion of both 

the Board and the trial court that the $560 amount of the penalty initially assessed by the 

Division against Lion for the General Violation of section 3380(f)(2) was insufficient 

under all of the relevant circumstances, and their conclusion that a penalty of $1,125 was 

more appropriate under the circumstances, given Lion’s manifest lack of abatement 

efforts. 

B. Serious Violation of Section 3380(f)(1)(A)

Lion also contests the Division’s classification of its violation of 

section 3380(f)(1)(A) (for not requiring helmet usage among Lion’s employees riding 

ATV’s in the course of their work) as “serious.” Lion contends that its violation did not 

rise to the level of a “serious” violation and therefore the $13,500 penalty (reduced from 

$18,000 by the Board) ultimately assessed for that violation was inappropriate. For the 

reasons below, we disagree.

Section 3380(f)(1)(A) states:

“(f) Hazard assessment and equipment selection.

“(1) The employer shall assess the workplace to 

determine if hazards are present, or are likely to be 

present, which necessitate the use of personal 

protective equipment (PPE). If such hazards are 

present, or likely to be present, the employer shall:

“(A) Select, and have each affected employee 

use, the types of PPE that will protect the 

affected employee from the hazards identified 

in the hazard assessment.”
21.

If the Division demonstrated that there was a realistic possibility that death or 

serious bodily harm could result from the actual hazard created by the violation in 

question, then that created a rebuttable presumption that a “serious violation” of the 

regulation had occurred. (Lab. Code, § 6432.) As we have previously noted, a “serious 

violation” under Labor Code section 6432 is broadly defined, and “almost any dangerous 

condition could constitute a serious violation.” (Salwasser Manufacturing Co. v. 

Municipal Court (1979) 94 Cal.App.3d 223, 230, fn. 4.)

There is in this case substantial evidence in the administrative record to support 

the Board’s findings and conclusion that Lion’s violation of section 3380(f)(1)(A) was 

“serious,” and to support the amount of the penalty for the Serious Violation, as well as to 

support the trial court’s endorsement of such findings.

Regarding the potentially serious nature of accidents involving un-helmeted ATV 

riders in agricultural settings, such as Lion’s on-the-vine raisin vineyard, the Division’s 

Associate Safety Engineer Chase, who possessed particularized expertise and training in 

workplace safety, knew of and cited to a number of fatalities occurring in the Fresno 

Division involving ATV’s, including one fatality investigated by his office where a 

helmet was not worn and head injuries occurred. Requiring employees to wear helmets 

while riding ATV’s would patently ameliorate, if not eliminate, the inherent head injury 

risks of such ATV-related accidents. Furthermore, in Chase’s professional view, no 

danger would be posed to ATV riders wearing helmets in cane or fruit rows. Conversely, 

Lion’s own retained workplace safety expert, Guentzler, did not contest Chase’s 

testimony regarding ATV-related fatalities, and admitted he knew of no instance in which 

a helmet-wearing ATV rider had gotten such a helmet caught on the fruit or the canes of 

a vineyard, and been injured thereby. Nor did Guentzler provide any examples of 

agricultural workers suffering illness or injury (such as heatstroke) because they wore 

helmets while using ATV’s in that setting. 
22.

Moreover, the documentary record of this case is replete with warnings from the 

ATV’s manufacturer and others alike of the general risk of serious injury to those persons 

riding an ATV without a helmet. The subject ATV’s owner’s manual prominently stated 

(under the heading of “Important Safety Information”) that ATV riders should “[a]lways 

[w]ear a [h]elmet.” That admonition was accompanied by the explanation that “[i]t’s a 

proven fact: helmets significantly reduce the number and severity of head injuries. So 

always wear an approved motorcycle helmet.” The subject ATV itself had a warning 

sticker affixed to its bodywork that listed as one of its first warnings (complete with a 

graphic illustration) for users to “ALWAYS USE AN APPROVED HELMET AND 

PROTECTIVE GEAR” and noting that “[i]mproper ATV use can result in SEVERE 

INJURY or DEATH.” This warning label also admonished users of the ATV to 

“LOCATE AND READ OWNER’S MANUAL. FOLLOW ALL INSTRUCTIONS 

AND WARNINGS.” As noted, the instructions and warnings contained in the ATV’s 

owner’s manual included an instruction to always wear a helmet when operating the 

vehicle. A United States Department of Labor Occupational Safety and Health 

Administration “Agricultural Safety Fact Sheet” used by the Division at the hearing 

cataloged accidents involving ATV’s in agricultural settings. From 2003 to 2011, there 

were 2,090 injuries and 321 fatalities involving ATV’s. According to the Agricultural 

Safety Fact Sheet, three out of every five overall reported ATV fatalities during that time 

period occurred in agricultural settings. That same Agricultural Safety Fact Sheet also 

specifically identified “[o]perators not wearing a helmet or other protective equipment” 

as one of the six cited causes of a majority of the reported ATV incidents. A 

Pennsylvania State University Extension paper (“The Safe Use of ATVs in Agriculture”) 

likewise utilized by the Division before the Board in this matter concluded expressly that 

given the hazards inherent in operating an ATV in an agricultural setting, “[a] full-face 

helmet that is the correct size for the operator should always be worn when riding an 

ATV,” notwithstanding that at low speeds such a helmet might become “unbearably hot.” 
23.

A 2016 Extension Foundation publication also utilized by the Division before the Board 

in this matter (“ATV Safety for Agricultural Producers”) highlighted the number of 

injurious and fatal ATV accidents on farms and ranches, and stated that “[t]he most 

important piece of PPE for an [ATV] operator is a helmet.” 

Given the amount of information and warnings available to both Lion and the 

Division concerning the risks of serious head injury or death when riding ATV’s, and the 

importance of wearing a helmet when doing so to prevent such injury or death, there is 

more than substantial evidence to support the Division’s conclusion that Lion’s failure to 

mandate the wearing of safety helmets by its employees when riding ATV’s in the course 

and scope of their work in the vineyard was a “serious” violation of section 

3380(f)(1)(A). Lion’s position that its employees would be safer riding ATV’s without 

helmets than with helmets defied logic and reason.

While Lion makes considerable argument regarding a lack of causal connection 

between Barrientos’s fatal accident and his not wearing a helmet at the time of the 

accident, that was immaterial to the analysis. It was the potential of serious injury or 

death inherent in riding ATV’s in agricultural settings, evinced by the numerous safety 

publications and warnings considered by the Division, as well as the opinion of the 

Division’s own subject matter expert, that was material to determining whether the lack 

of a helmet mandate constituted a “serious” violation of section 3380(f)(1)(A). The fact 

that Barrientos’s tragic death was not related to a lack of a helmet did not diminish the 

likelihood that other Lion employees could be severely injured or killed while using 

ATV’s without helmets because the wearing of helmets while riding them was not 

required by Lion as part of its PPE program.

The administrative record also contains extensive documentation of the Division’s 

analysis and calculation of the $18,000 amount of the penalty in question, which amount 

was ultimately reduced to $13,500 by the Board. This penalty was supported by the 

workplace safety regulatory scheme in which the amount of a “serious” violation’s 
24.

penalty is determined.5 In this case, section 335, subdivision (a)(1)(B) required the 

severity of the “serious” violation to be regarded as “high,” and section 336, subdivision 

(c)(1) in turn dictated an initial default base penalty of $18,000. Lion and the Division 

stipulated to a 15 percent good faith reduction to this default penalty, as well as a 10 

percent reduction for Lion’s history of a lack of such violations, which resulted in an 

adjusted proposed penalty of $13,500. The evinced analysis and calculations reveal that 

the ultimate amount of the penalty was not arbitrary or excessive, but instead was based 

upon specific enumerated factors that were considered and weighed in light of the facts 

and circumstances of this particular violation, as well as upon the stipulated agreement of 

the parties. Any trier of fact objectively assessing the evidence supporting the decisions 

of the Division and Board in developing the penalty for the Serious Citation would find 

the evidence “reasonable, credible and of solid value.” (Sandarg, supra, 184 

Cal.App.4th, at p. 1440.) Additionally, our “look to the findings in [the administrative 

agency’s] decision for guidance in determining whether the trial court’s judgment [was] 

supported by substantial evidence” reveals that it was also reasonable and supported by 

substantial evidence. (Ibid.) Accordingly, we find that substantial evidence supported

not only the Division’s assessment of Lion’s violation of section 3380 as “serious,” but 

5 According to the scheme, first, a violation of the Division’s workplace safety 

regulations is categorized as either “general” or “serious” under section 334.

Next, the gravity of the violation is assessed by the qualitative factors set out in 

section 335, subdivision (a), under which the violation is rated as “low,” “medium,” or 

“high,” in the categories of severity (“serious” violations are high severity by definition); 

extent; and likelihood of the injury, illness, or disease.

Finally, the amount of the civil penalty imposed for the violation is calculated 

under the quantitative rubric of section 336. Both “general” and “serious” violations are 

incorporated into the rubric, and for each violation, the “low,” “medium,” and “high” 

ratings determined under section 335 determine the base penalty or are used as 

adjustment factors (either increasing or decreasing the amount of the penalty, depending 

upon whether each of the factors are regarded as “low,” “medium,” or “high”). Both 

specific dollar amounts and percentages of adjustment are stated in the rubric.
25.

the Board’s imposition of the $13,500 penalty for such a “serious” violation under the 

particularized facts and circumstances of this case, as well as the trial court’s ratification 

of that penalty.

IV. The Independent Employee Action Defense (IEAD) Does Not Apply to the 

Citations

Lastly, we consider whether the Board and the trial court erred in holding that the 

IEAD was not applicable to the citations Lion received. In its motion for administrative 

mandate, Lion sought to rely on the IEAD as an affirmative defense to the citations the 

Division assessed it in this instance. Lion’s efforts in this regard were based on its 

assertion that Barrientos’s accident was caused by Barrientos’s own unsanctioned 

excessive speed when using Lion’s ATV, and was not due to any deficiencies in Lion’s 

safety standards. The IEAD, however, applies to employee actions and decisions, not 

employer actions and decisions. In this case, the citations at issue were not related to 

Barrientos’s actions or death, but rather Lion’s actions (and inactions). The IEAD 

therefore has no applicability to this case, and neither the Board nor the trial court erred 

in so finding.

For an employer like Lion to successfully assert the IEAD, it must prove all five of 

the IEAD’s constituent elements: (1) the employee in question was experienced in the 

job being performed; (2) the employer has a well-devised safety program that includes 

training employees in matters of safety respective to particular job assignments; (3) the 

employer effectively enforces the safety program; (4) the employer has a policy of 

sanctions which it enforces against those employees who violate its safety program; and 

(5) the employee caused a safety infraction which the employee knew was contrary to the 

employer’s safety requirements. (Mercury Service, Inc., Cal/OSHA App. 77-1133, pp. 

2–3, Decision After Reconsideration (Oct. 16, 1980).)

As the ALJ correctly noted in this case, Lion itself, and not its employee 

Barrientos, was the actor responsible for the violations of both of the cited safety 
26.

regulations. The IEAD is premised on an employer’s compliance with its nondelegable 

statutory and regulatory duties. (Pierce Enterprises, Cal/OSHA App. 00-1951, pp. 11–

12, Decision After Reconsideration (Mar. 20, 2002).) In this case, there was substantial 

evidence adduced that Lion was not in compliance with its nondelegable regulatory 

duties (and an outright admission by Lion of its noncompliance with its duties under 

section 3380(f)(2)). Lion could not abrogate such duties by claiming that Barrientos 

violated Lion’s safety program (even if Barrientos’s conduct leading to his fatal accident 

did in fact violate Lion’s safety program). Such a violation on the part of Barrientos did 

not relieve Lion of its independent obligation to perform its nondelegable regulatory 

duties. Lion’s attempt to invoke the protections of the IEAD on the facts of this case was

therefore unavailing, and the Board and trial court’s decisions in that regard were

supported by substantial evidence.

V. Conclusion

There was no error in the trial court’s denial of Lion’s petition for an 

administrative writ of mandate. Lion’s due process claim should and could have been 

raised at the Board and trial court levels, but was not. Even if it had been, it is 

unmeritorious, as the pertinent regulation, as applied, did not violate Lion’s constitutional 

substantive due process rights. Neither the Board nor the trial court erred in holding that 

the PPE workplace safety regulatory violation was “serious,” given the widely recognized 

potential for grievous bodily injury and death inherent in operating ATV’s in an 

agricultural setting without mandating operators wear safety helmets. The amounts of the 

penalties assessed against Lion for its violations of sections 3380(f)(2) and 3380(f)(1)(A) 

were supported by substantial evidence, given the gravity of the violations of those 

regulations committed by Lion. Neither the Board nor the trial court erred in holding the 

IEAD inapplicable to the facts and circumstances of this case, because that defense 

applies when the behavior of an employee is at issue, and in this instance, it was the 

behavior of the employer that was at issue.
27.

For these reasons, the trial court’s ruling on Lion’s petition for writ of 

administrative mandate was correct, and should not be disturbed on appeal.

DISPOSITION

The judgment is affirmed. Each party shall bear its own costs on appeal.

LEVY, Acting P.J.

WE CONCUR:

SNAUFFER, J.

DE SANTOS, J.