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Filed 4/8/15 Clark Pacific v. Occupational Safety and Health Appeals Bd. CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

CLARK PACIFIC, 

 Plaintiff and Appellant, 

 v. 

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. 

C075477 

(Super. Ct. No. 

34201080000640CUWMGDS) 

 In July 2007 Moises Cordero, an employee of plaintiff Clark Pacific (Clark), was 

injured when a gantry crane ran over his foot and ankle, resulting in the amputation of his 

lower leg. Real party in interest Department of Industrial Relations, Division of 

Occupational Safety and Health (Division) issued a citation charging Clark with a serious 
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violation of a safety standard. Defendant Occupational Safety and Health Appeals Board 

(Board) upheld the Division’s citation of Clark for violating California Code of 

Regulations, title 8, section 4906, subdivision (b), failure to guard the crane’s wheels.1 

Clark filed a petition for a writ of mandate, which the trial court denied. Clark appeals, 

arguing the safety standard at issue does not apply to the circumstances of Cordero’s 

accident and the trial court committed several prejudicial errors. We shall affirm the 

judgment. 

FACTUAL AND PROCEDURAL BACKGROUND 

The Accident 

 Clark manufactures precast walls, floors, and structural membranes. The company 

also installs these components at construction sites. On July 10, 2007, Cordero was 

working as a “groundsman” for Clark, responsible for rigging precast concrete panels to a 

gantry crane, helping to direct the movement of the crane, and making sure no other 

workers were in the crane’s path. A Clark loading superintendent/foreman, Jack Bohling, 

operated the gantry crane. 

 The accident occurred when Cordero and Bohling were moving precast concrete 

panels to be loaded onto trailers. While moving the concrete panel, the gantry crane 

made contact with Cordero and knocked him to the ground. The crane tire rolled onto his 

foot and upper ankle, then reversed and rolled off his leg. The gantry crane, including its 

load, weighed approximately 100,000 pounds. The crane operated on rubber tires. 

Cordero’s injuries resulted in the amputation of his foot and lower leg. 

 The gantry crane’s tires are 48 inches in diameter. Each tire has a small metal bar 

guard, located about halfway up, approximately 20 to 24 inches above the ground. 

Clark’s cranes run on an asphalt surface. A Division inspector conducted an 

 

1 All further section references are to title 8 of the California Code of Regulations unless 

otherwise designated. 
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investigation of the accident site and issued four citations to Clark.2 The Division 

inspector testified that it would have been practical to lower the guards to about one-half 

inch above the ground. The Division inspector also stated that the guard on the crane 

involved in the accident did not meet the requirements of the safety order. The guard 

failed to prevent an employee from being struck and rolled over by the tire. 

 Clark’s safety director, Garlon Prewitt, stated that the crane operates on both 

asphalt and sandy surfaces; therefore, a one-half inch guard height would not be practical. 

However, Prewitt conceded that a guard four inches off the surface would be practicable 

on asphalt surfaces, and a guard six inches above the surface would be practicable on 

sandy surfaces. 

Subsequent Events 

 Clark appealed the citations. After a three-day evidentiary hearing, an 

administrative law judge issued a decision dismissing two of the citations and affirming 

two of the citations, including the section 4906 citation. Clark filed a petition for 

reconsideration with the Board. The Board denied the petition. 

 Clark filed a petition for a writ of mandate in the trial court. The trial court issued 

a tentative ruling. Following oral argument, the court affirmed the tentative ruling, 

denying the petition for a writ of mandate. Following notice of entry of judgment, Clark 

filed a timely notice of appeal. 

DISCUSSION 

Standard of Review 

 A party may seek judicial notice of a final decision of the Board by filing a 

petition for a writ of mandamus. (Lab. Code, § 6627.) Labor Code section 6629 limits 

the scope of the trial court’s review of the Board’s decision to a determination of whether 

 

2 In this appeal, Clark challenges only the citation under section 4906. 
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the Board acted in excess of its powers; the order was procured by fraud; the order was 

unreasonable; the order was not supported by substantial evidence; or, if findings of fact 

were made, whether such findings support the order under review. Our function on 

appeal is the same as that of the trial court in ruling on the petition for the writ. (Teichert 

Construction v. California Occupational Safety & Health Appeals Bd. (2006) 

140 Cal.App.4th 883, 887-888 (Teichert Construction).) 

 We review the Board’s fact finding under the substantial evidence test. We do not 

review the evidence de novo or exercise our independent judgment on the evidence. 

Instead, we review the evidence in the light most favorable to the administrative agency, 

giving it every reasonable inference and resolving all conflicts so as to support the 

agency’s findings. (Lab. Code, § 6629; Teichert Construction, supra, 140 Cal.App.4th at 

pp. 887-888.) If the Board’s findings are supported by inferences that may fairly be 

drawn from the evidence even though the evidence is susceptible to opposing inferences, 

we will not disturb the decision. (Riskin v. Ind. Acc. Com. (1943) 23 Cal.2d 248, 254.)3

 In addition, when an administrative agency is charged with enforcing a particular 

statute, its interpretation of the statute will be accorded great weight and be followed 

unless clearly erroneous. The Board is an agency equipped and informed by experience 

to deal with a specialized field of knowledge, whose findings within that field carry the 

authority of expertness that we do not possess and therefore must respect. (Davey Tree 

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

1243-1244.) 

The Citation 

 The citation charged Clark with a violation of section 4906, which is entitled 

“Truck Wheel Guards and Railsweeps.” The citation specifically referred to 

 

3 We grant the request for judicial notice filed by the Board on August 20, 2014.
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section 4906, subdivision (b) but quoted subdivisions (b) and (c) of the safety standard: 

“(b) Gantry, tower, hammerhead, or portal crane trucks and wheels shall be equipped 

with wheel guards or be otherwise similarly guarded at both ends of each truck to prevent 

a person being crushed beneath the wheels. The clearance between the guard and the rail 

or running surface shall be such as will afford maximum protection against crushing 

injuries. Wherever practicable, one half of an inch clearance shall be maintained. 

 “(c) Container-handling, rubber-tired, gantry cranes shall be guarded with wheel 

fenders, bumpers or skirt guards which shield each wheel to the front and rear extended 

to the lowest practicable level above ground.” 

 The citation provided the following facts to support the violation: “At the Clark 

Pacific . . . facility . . . a traveling gantry crane with an employer ID # 406 being used to 

lift and move what the employer referred to as Double T forms was not equipped with 

adequate wheel guards to prevent a person from being crushed beneath the wheels which 

is what occurred on July 10, 2007 when an employee was struck by a crane tire, knocked 

down and his foot crushed underneath the tire resulting in an accident related serious 

injury to the employee.” The violation was classified as “serious,” and the Division 

assessed a penalty of $18,000 against Clark. 

Clark’s Objections to the Citation 

 On appeal, Clark renews the series of objections to the citation it argued before the 

administrative law judge and the trial court. Clark argues the citation refers to 

section 4906, subdivision (b), which does not apply to the gantry crane involved in this 

case. 

 Clark does not dispute the crane involved was a gantry crane. Clark contends the 

term “rail or running surface” used in section 4906, subdivision (b) is a term of art and 

limits the coverage of the section to gantry cranes that operate on such a surface. The 

gantry crane in question, Clark argues, operated throughout the plant on rubber tires, not 
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on a rail or running surface. Instead, section 4906, subdivision (c) is the safety standard 

that applies to the crane in question. 

 We join the administrative law judge and the trial court in rejecting this 

interpretation of the provision. As with statutes, we give words in a regulation their 

ordinary meaning. As used in subdivision (b), the term “running surface” simply 

describes where a crane operates. It does not limit the scope of the provision to cranes 

operating on some specialized surface and is broad enough to include a gantry crane, 

such as the crane involved in the present mishap, that operated on asphalt and sandy 

surfaces. 

 The trial court noted it gives the Board’s interpretation of the regulations it 

enforces great weight unless the interpretation is clearly erroneous or unauthorized. 

Accordingly, the trial court found it was reasonable to apply the term “running surface” 

in section 4906, subdivision (b) to the paved and unpaved surfaces upon which the crane 

in the present case operated. 

 We agree. The Board’s rejection of Clark’s construction of section 4906, 

subdivision (b) was not clearly erroneous or unauthorized. Section 4906, subdivision (b) 

states that the clearance between the guard “and the rail or running surface shall be such 

as will afford maximum protection against crushing injuries.” (Italics added.) This use 

of the disjunctive supports the Board’s interpretation that “running surface” is something 

different and distinct from “rail.” Clark provides no support for considering the term 

“running surface” as a technical term or term of art defined elsewhere in the regulation. 

Therefore, the Board’s interpretation of “running surface” in light of its ordinary 

meaning, as the surface of any type on which the gantry crane runs, is reasonable and not 

clearly erroneous. We agree with the trial court that the Board acted reasonably to apply 
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the term “running surface” to the paved and unpaved surfaces upon which the gantry 

crane in the present case operated.4

 Clark also argues the Labor Code demands specificity. The trial court rejected 

Clark’s claim that the Board’s interpretation was so vague that it failed to give employers 

proper notice as to what they must do to comply with the regulation. We also reject 

Clark’s notice claim. Section 4906, subdivision (b) unequivocally states that wheels on 

gantry cranes must be guarded in such a manner that the clearance between the guard and 

the running surface, including paved and unpaved surfaces, must afford maximum 

protection against crushing injuries. We find section 4906, subdivision (b) provides 

adequate notice. 

 The trial court also found the Board’s conclusion that the wheels of Clark’s gantry 

crane were not guarded as required by section 4906, subdivision (b) was supported by 

substantial evidence. Again, we agree. 

 Section 4906, subdivision (b) states that the “clearance between the guard and the 

rail or running surface shall be such as will afford maximum protection against crushing 

injuries,” with clearance of one-half inch to be maintained where practicable. Here, the 

only guard against crushing injuries was a narrow metal bar crossing the front of the tires, 

approximately 24 inches off the ground. As the trial court noted: “the wheels were not 

guarded so as to afford any real protection against crushing injuries.” 

 Finally, the trial court determined the Board correctly found the violation 

“serious.” As the trial court observed, the gap between the tire guard and the surfaces 

 

4 On appeal, Clark renews its claim that the gantry crane in question was covered not by 

section 4906, subdivision (b) but by section 4906, subdivision (c). Clark reiterates that 

subdivision (c) covers gantry cranes that run on tires. However, subdivision (c) refers to 

“[c]ontainer-handling, rubber-tired, gantry cranes.” There is no evidence in the record, 

and Clark does not assert, that the gantry crane in question was a container-handling 

gantry crane. Since we find the Board and the trial court properly found subdivision (b) 

pertains to Clark’s gantry crane, we need not address this issue. 
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upon which the crane operated was openly visible and thus discoverable through 

reasonably diligent inspection. In the trial court, Clark argued the gantry crane in 

question had been in operation for 30 to 35 years without incident; the crane traveled 

over all types of ground surfaces, and operations often included the presence of a 

groundsperson working with the crane operator. The trial court concluded: “Even if 

petitioner believed in good faith that the gantry crane’s wheels were adequately guarded 

in this case, based either on the opinions of other operators or on its own accident-free 

history of operations, such belief is essentially irrelevant here given the openly visible 

nature of the violation.” We agree and find that the trial court’s upholding of the 

violation as serious was reasonable and supported by substantial evidence. 

DISPOSITION 

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. 

Rules of Court, rule 8.278(a).) 

 RAYE , P. J. 

We concur: 

 BLEASE , J. 

 BUTZ , J.