Filed 2/24/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

SOLUS INDUSTRIAL INNOVATIONS, 

LLC, et al.,

 Real Parties in Interest.

 G047707

 (Super. Ct. No. 30-2012-00581868)

 O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of 

the Superior Court of Orange County, Kim Garlin Dunning, Judge. Petition Denied.

Tony Rackauckas, District Attorney, and Kelly A. Roosevelt, Deputy 

District Attorney, for Petitioner.

No appearance for Respondent.

Jones Day, Brian A. Sun and Frederick D. Friedman, for Real Parties in 

Interest.
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Amy D. Martin and Kathryn J. Woods for the Department of Industrial 

Relations Division of Occupational Safety and Health as Amicus Curiae on behalf of the 

People.

* * *

In this case we are called on to interpret the effect of Labor Code section 

6315, subdivision (g), which specifies that in cases involving serious injury to five or 

more employees in the workplace, or the death of an employee, and where a formal 

investigation by the Division of Occupational Safety and Health (the Division) was 

mandated, the results of that investigation “shall be referred in a timely manner . . . to the 

appropriate prosecuting authority having jurisdiction for appropriate action.” 

Petitioner, the Orange County District Attorney, contends that when such a

case is referred to him, he has standing to pursue claims for both criminal and civil

penalties against the responsible parties. In this case, he sued respondents Solus 

Industrial Innovations, Emerson Power Transmission Corp. and Emerson Electric Co. 

(collectively Solus), alleging various civil violations, including two causes of action 

based Labor Code sections 6428 and 6429. Solus contends those two causes of action are 

improper, because while the district attorney has plenary power to pursue criminal 

penalties where appropriate, he has no power to pursue civil penalties unless specifically 

authorized by statute to do so. These two Labor Code statutes include no such 

authorization. Based on that contention, Solus demurred to the two causes of action in 

the trial court, arguing the district attorney had no standing to enforce the underlying 

statutes.

The trial court agreed with Solus and consequently sustained its demurrer 

to the two causes of action based on the Labor Code without leave to amend. However, 
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the court also certified this issue as presenting a controlling issue of law suitable for early 

appellate review under Code of Civil Procedure section 166.1. The district attorney then 

filed a petition for writ of mandate with this court, asking us to review the trial court’s 

ruling. After we summarily denied the petition, the Supreme Court granted review and 

transferred the case back to us with directions to issue an order to show cause.

We issued the order to show cause and now conclude the trial court’s ruling 

was correct on the merits. The statutory scheme for enforcement of workplace safety 

standards reflects that the Division is the governmental agency responsible for civil 

enforcement of the Labor Code provisions, and that mandatory referral of serious cases to 

prosecutors is primarily intended to facilitate criminal prosecution where appropriate. 

We consequently deny the petition.

FACTS

As is required when we review the propriety of the trial court’s ruling on a 

demurrer, “‘we treat the demurrer as admitting all material facts properly pleaded, but do 

not assume the truth of contentions, deductions or conclusions of law.’” (West v. 

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792.)

Solus makes plastics at an Orange County manufacturing facility. In 2007, 

Solus installed an electric water heater intended for residential use at the facility. In 

March 2009, that water heater exploded, killing two workers instantly in what the district 

attorney refers to as an “untimely and horrific death.” 

After the incident, the Division opened an investigation and determined the 

explosion had been caused by a failed safety valve and the lack of “any other suitable 

safety feature on the heater” due to “manipulation and misuse.” Based on the Division’s 

investigation, it charged Solus with five “‘[s]erious’” violations of title 8 of the California 
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Code of Regulations in an administrative proceeding, including violations of: “(1) 

section 467(a) for failure to provide a proper safety valve on the heater; (2) section 

3328(a) for permitting the unsafe operation of the water heater; (3) section 3328(b) for 

improperly maintaining the water heater; (4) section 3328(f) for failing to use good 

engineering practices when selecting and using the unfit residential water heater in the 

extrusion operations; and (5) section 3328(h) for permitting unqualified and untrained 

personnel to operate and maintain the water heater.” The Division also cited Solus with 

one “‘[w]illful’” violation of the same regulation, based on its “willful failure to maintain 

the residential water heater in a safe operating condition.”

Because the incident involved the death of two employees, and there was 

evidence that a violation of law had occurred, the Division’s Bureau of Investigation 

(BOI) forwarded the results of its internal investigation to the district attorney as required 

by Labor Code section 6315, subdivision (g). In March 2012, the district attorney filed 

criminal charges against two individuals, including Solus’s plant manager and its 

maintenance supervisor, for felony counts of violating Labor Code section 6425,

subdivision (a). (See People v. Faulkinbury, (Super. Ct. Orange County, 2012, No.

12CF0698).) No party challenges the district attorney’s standing to bring these or other 

appropriate criminal prosecutions. 

In July 2012, the district attorney also filed the instant civil action against 

Solus. The complaint contains four causes of action, all based on the same worker health 

and safety standards placed at issue in the administrative proceedings. 

The first cause of action alleges that Solus’s violations of the safety 

standards set forth in title 8 of the California Code of Regulations also qualified as a

separate “serious violation” of occupational safety or health standards under Labor Code 

section 6428, for each day the water heater was in operation, and for each employee 

subjected to the hazardous condition. It seeks recovery of “civil penalties of ‘up to 
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twenty-five thousand dollars ($25,000) for each violation’ from November 29, 2007 to 

March 19, 2009.”

The second cause of action alleges that Solus’s violations of the safety 

standards set forth in title 8 of the California Code of Regulations also constituted a 

separate “willful violation” of occupational safety or health standards under Labor Code 

section 6429 for each day the water heater was in operation, and for each employee 

subjected to the hazardous condition as a result of the violation. The district attorney 

seeks to recover “civil penalties of ‘not more than seventy thousand dollars ($70,000) for 

each violation, but in no case less than five thousand dollars ($5,000) for each willful 

violation from November 29, 2007 to March 19, 2009.”

The third and fourth causes of action allege that these same Labor Code 

violations also constitute unfair business practices under California’s Unfair Competition 

Law (UCL) (see Bus. & Prof. Code, § 17200 et seq.). However, it is only the first and 

second causes of action which are at issue in this writ proceeding.

Solus demurred to the first and second causes of action, contending the 

district attorney had no statutory authority to pursue civil actions for Cal/OSHA 

violations. The trial court agreed, and sustained the demurrer to these causes of action, 

without leave to amend. 

The trial court subsequently granted a request to certify the standing issue 

as appropriate for early appellate review under Code of Civil Procedure section 166.1, 

finding “[t]he issue of [the district attorney’s] standing to bring the First and Second 

Causes of Action in the Complaint . . . presents a controlling question of law as to which 

there are substantial grounds for difference of opinion and that appellate resolution of this 

issue may materially advance the conclusion of the litigation.” 

The district attorney filed a petition for writ of mandate with this court, 

which we summarily denied. After our denial, the Supreme Court granted review and 
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transferred the case back to us with directions to issue an order to show cause. On May 

10, 2013, we issued the order to show cause.

DISCUSSION

1. The Statutory Scheme for Workplace Safety Violations

Labor Code sections 6428 and 6429, the civil penalty provisions underlying 

the district attorney’s two challenged causes of action, are part of the California 

Occupational Safety and Health Act of 1973 (Lab. Code, § 6300 et seq; the Act), which 

was “enacted for the purpose of assuring safe and healthful working conditions for all 

California working men and women by authorizing the enforcement of effective 

standards, assisting and encouraging employers to maintain safe and healthful working 

conditions, and by providing for research, information, education, training, and 

enforcement in the field of occupational safety and health.” (Lab. Code, § 6300.)

The Act specifically gives the Division “the power, jurisdiction, and 

supervision over every employment and place of employment in this state, which is 

necessary to adequately enforce and administer all laws and lawful standards and orders, 

or special orders requiring such employment and place of employment to be safe, and 

requiring the protection of the life, safety, and health of every employee in such 

employment or place of employment.” (Lab. Code, § 6307.)

The Act also requires the Division to “investigate the causes of any 

employment accident that is fatal to one or more employees or that results in a serious 

injury or illness, or a serious exposure, unless it determines that an investigation is 

unnecessary . . . [and to] establish guidelines for determining the circumstances under 

which an investigation of these accidents and exposures is unnecessary.” (Lab. Code,

§ 6313, subd. (a).)
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Labor Code section 6315, subdivision (b), specifies that within the Division 

is the BOI, which “is responsible for directing accident investigations involving 

violations . . . in which there is a serious injury to five or more employees, death, or 

request for prosecution by a division representative. The [BOI] shall review inspection 

reports involving a serious violation where there have been serious injuries to one to four 

employees or a serious exposure, and may investigate those cases in which the [BOI]

finds criminal violations may have occurred.” Moreover, “[i]n any case where the [BOI] 

is required to conduct an investigation, and in which there is a serious injury or death, the 

results of the investigation shall be referred in a timely manner by the bureau to the 

appropriate prosecuting authority having jurisdiction for appropriate action, unless the 

[BOI] determines that there is legally insufficient evidence of a violation of the law.” 

(Lab. Code, § 6315, subd. (g).) Moreover, “[u]pon the request of a county district 

attorney, the department may develop a protocol for the referral of cases that may involve 

criminal conduct to the appropriate prosecuting authority in lieu of or in cooperation with 

an investigation by the bureau.” (Lab. Code, § 6315, subd. (i).)

Labor Code section 6425, subdivision (a), expressly provides for criminal 

prosecution of “[a]ny employer and any employee having direction, management, 

control, or custody of any employment, place of employment, or of any other employee, 

who willfully violates any occupational safety or health standard, order, or special order, 

or Section 25910 of the Health and Safety Code, and that violation caused death to any 

employee, or caused permanent or prolonged impairment of the body of any 

employee . . . .”

Labor Code section 6317 requires the Division to issue a citation to an 

employer in any case where it “believes that an employer has violated Section 25910 of 

the Health and Safety Code or any standard, rule, order, or regulation established 

pursuant to Chapter 6 (commencing with Section 140) of Division 1 of the Labor Code, 
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or any standard, rule, order, or regulation established pursuant to this part . . . .” (Lab. 

Code, § 6317.) A citation must be issued within six months of the occurrence of a 

violation. (Ibid; Vial v. California Occupational Saf. & Health Appeals Bd. (1977) 75 

Cal.App.3d 997, 1005.) Labor Code section 6317 also specifically empowers the 

Division to “impose a civil penalty against an employer as specified in Chapter 4 

(commencing with section 6423) of this part.” (Italics added.) Labor Code sections 6428 

and 6429, the penalty provisions at issue herein, are within that chapter. 

If the Division issues a citation or a notice of civil penalty, it is required, 

within a reasonable time, to notify the employer by certified mail of the citation, and of 

the employer’s right to contest the citation. The employer may then appeal the citation, 

or the “notice of civil penalty” to the “appeals board.” (Lab. Code, § 6319, subd. (b).) 

The final enforcement decision reached by the Division as a result of this administrative 

process “may be reviewed by the Supreme Court and the courts of appeal as may be 

provided by law.” (Lab. Code, § 6308.) 

2. The District Attorney’s Limited Standing to Bring Civil Actions

Solus’s challenge to the district attorney’s standing to maintain these Labor 

Code causes of action is based on Safer v. Superior Court (1975) 15 Cal.3d 230 (Safer). 

In Safer, our Supreme Court concluded that a district attorney’s power to bring civil 

actions is limited to situations where such action is expressly authorized. As the court 

explained, “the Legislature has manifested its concern that the district attorney exercise 

the power of his office only in such civil litigation as that lawmaking body has, after 

careful consideration, found essential. An examination of the types of civil litigation in 

which the Legislature has countenanced the district attorney’s participation reveals both 

the specificity and the narrow perimeters of these authorizations.” (Id. at p. 236, italics 

added.) As Solus points out, Safer has been cited with approval by the Supreme Court in 
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subsequent cases; most recently in People v. Superior Court (Humberto S.) (2008) 43 

Cal.4th 737, 753, footnote 12, where there court reiterated that “a district attorney has no 

authority to prosecute civil actions absent specific legislative authorization.” (Italics 

added.)

The district attorney attempts to minimize the significance of Safer, arguing 

it must be construed narrowly so as to avoid infringing his statutory authority to act as 

“public prosecutor” to “initiate and conduct on behalf of the people all prosecutions for 

public offenses.” (Gov. Code, § 26500, italics added; section 26500.) In the district 

attorney’s view, section 26500 implicitly confers on him the authority to pursue all 

claims seeking penalties, whether civil or criminal, and places the onus on the Legislature 

to specify the situations where he lacks authority to pursue civil penalties: “When the 

Legislature seeks to restrict the District Attorney’s ability to pursue civil penalties for 

public offenses, Section 26500 confirms that the law must expressly so state; otherwise, 

the District Attorney has authority to act as the public prosecutor for all public offenses. 

If the Legislature intended to grant [the Division] exclusive authority to seek civil 

penalties and limit prosecutors to taking criminal actions, . . . the Legislature could 

easily have said so, but it did not.” (Italics added.) 

There are two flaws in that argument. First, section 26500 does not define 

“public offenses,” and the district attorney offers no persuasive authority for his implicit 

assertion the term would naturally encompass violations of civil penalty statutes as well 

as criminal ones. We would conclude the opposite, based on Government Code section 

26501. While neither statute actually defines the term “public offenses,” the latter

strongly implies the term could not encompass civil wrongs, because it requires a district 

attorney to “institute proceedings before magistrates for the arrest of persons charged 

with or reasonably suspected of public offenses when he has information that such 

offenses have been committed.” (Gov. Code, § 26501, italics added.) The “arrest” of 
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persons suspected of “public offenses” could not be mandated if that term were 

interpreted to include mere civil statutory violations.

At oral argument the district attorney relied, for the first time, on Penal 

Code section 15 to support his expansive definition of the term “public offenses.” He 

argued Penal Code section 15 defined a “crime or public offense” as including any “act 

committed or omitted in violation of a law forbidding or commanding it,” and which is 

punishable by death, imprisonment, fine, removal from office or disqualification to hold 

or enjoy an office. But even if we were to assume (as the district attorney apparently 

does) that a “fine” under the Penal Code is the same thing as a civil penalty, the 

contention still falls apart when we consider the entire language of Penal Code section 

15. The statute states that the violations of law which qualify as crimes or public 

offenses are those to which the specified penalties are annexed “upon conviction.” There 

are no “convictions” under civil law. Moreover, Penal Code section 16 – the very next 

statute – states that “[c]rimes and public offenses include: [¶] 1. Felonies; [¶] 2. 

Misdemeanors; and [¶] 3. Infractions.” Civil wrongs are not mentioned.

The second problem with the district attorney’s argument is that it is 

contrary to Safer, which makes clear that the Legislature’s traditional practice has been to 

affirmatively specify the circumstances in which a district attorney can pursue claims in 

the civil arena, not the circumstances in which he cannot. (Safer, supra, 15 Cal.3d at p. 

236.) Indeed, in the area of employee rights specifically, Labor Code section 218

provides an excellent example of this practice, by expressly stating “[n]othing in this 

article shall limit the authority of the district attorney of any county or prosecuting 

attorney of any city to prosecute actions, either civil or criminal, for violations of this 

article or to enforce the provisions thereof independently and without specific direction of 

the division.” 
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Business and Professions Code section 17204 provides another example, 

stating, “Actions for relief pursuant to this chapter shall be prosecuted exclusively in a 

court of competent jurisdiction by the Attorney General or a district attorney or by a 

county counsel authorized by agreement with the district attorney . . . .” And Business 

and Professions Code section 17206, subdivision (a) states, “Any person who engages, 

has engaged, or proposes to engage in unfair competition shall be liable for a civil penalty 

not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall 

be assessed and recovered in a civil action brought in the name of the people of the State 

of California by the Attorney General, [or] by any district attorney . . . .”

These statutes, which explicitly confer standing on district attorneys to 

pursue the specified civil penalties, reinforce the conclusion that section 26500 is not 

intended to give district attorneys plenary authority to pursue any and all such penalties.

As pointed out in Safer, we infer the district attorney’s lack of authority to proceed where 

no authority is granted from “the Legislature’s clear demonstration that it knows how to 

grant him such power when it wishes to do so.” (Safer, supra, 15 Cal.3d. at pp. 237-238.) 

Based on this analysis, we conclude the only plenary authority conferred upon district 

attorneys is to pursue actions in the criminal arena. 

Finally, Board of Supervisors v. Simpson (1951) 36 Cal.2d 671 (Simpson), 

which the district attorney relies upon heavily in his reply brief, is entirely consistent with 

our conclusion. Simpson involved a dispute about whether a county board of supervisors 

could compel the district attorney to bring a civil action to abate a public nuisance in the 

name of the people, without violating the separation of powers doctrine. The Supreme 

Court concluded it could, citing Government Code section 26528, which expressly 

provides for a district attorney to bring such a suit, and authorizes a board of supervisors 

to compel it: “The district attorney may, and when directed by the board of supervisors 

shall, bring a civil action in the name of the people of the State of California to abate a 
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public nuisance in his county.” (Gov. Code, § 26528, italics added.) Given that Simpson

involves a district attorney who initiated a civil action which was expressly authorized by 

statute, it provides no support for the district attorney’s argument here.

Consequently, in the absence of explicit statutory authorization conferred 

on district attorneys to pursue claims for civil penalties under Labor Code sections 6428 

and 6429, we have no choice but to conclude they lack that standing. 

3. No Statute Confers Standing on the District Attorney to Bring These Causes of Action

Neither Labor Code sections 6428 and 6429, nor any other statute making 

specific reference to those statutes, expressly confers standing on the district attorney to 

bring an action for recovery of the civil penalties provided for in those statutes. And in 

light of our Supreme Court’s determination that “a district attorney has no authority to 

prosecute civil actions absent specific legislative authorization” (People v. Superior 

Court (Humberto S.), supra, 43 Cal.4th at p. 753, italics added), we could not conclude 

that standing could be established by implication.

But even if we believed that standing could be established by implication, 

neither the district attorney nor the Division acting as amicus curiae offers any persuasive 

argument that it should be found in this case. Both the district attorney and the Division

point to Labor Code section 6315, subdivision (g) as the source of implied standing, 

arguing its requirement that cases be referred to prosecutor’s for “appropriate action”

confers upon prosecutors the discretion to file whatever actions, civil or criminal, that 

they deem appropriate. 

Indeed, the district attorney suggests the trial court’s interpretation of Labor 

Code section 6315 amounted to striking the word “appropriate” from the phrase 

“appropriate action” and substituting the word “criminal” in its place. We disagree. The 

trial court’s interpretation merely reflects its acknowledgment that other laws, as 
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discussed in Safer and its progeny, restrict the scope of actions which a district attorney 

may appropriately pursue in the civil realm. And to the extent the district attorney is 

otherwise statutorily authorized to pursue appropriate civil claims against an employer 

who caused a workplace injury or death, those claims would be among the actions 

available to him. But Labor Code section 6315, subdivision (g) does not itself create

plenary standing.

The district attorney also suggests the trial court was misguided in 

suggesting that a rule permitting district attorneys to pursue these civil penalties would 

allow them to engage in “cherry pick[ing],” and throw the Cal/OSHA enforcement 

scheme into disarray. The district attorney claims “cherry pick[ing]” is not a concern 

because he can only act in cases referred by the BOI for prosecution. But that contention

ignores the fact the BOI is statutorily obligated to refer all cases which involve serious 

injury to multiple employees, or a death, unless it determines there is insufficient 

evidence of any violation of law. The prosecutor then has discretion to take appropriate 

action, or to not take action, in response to that mandatory referral. If that discretion 

were deemed to include the right to pursue the same civil penalties which by statute are 

within the province of the Division (Lab. Code, § 6317), as well as criminal actions, the 

prosecutor could presumably usurp the Division’s own discretion to determine, through 

its administrative process, whether the imposition of civil penalties under either Labor 

Code section 6428 or section 6429 would be appropriate. 

Of course, the district attorney appears to believe this would not be a 

problem, because in his view, the Division is essentially incapable of enforcing these 

Labor Code civil penalties in serious cases. According to the district attorney, it is the

not the Division’s responsibility to “investigat[e] the most serious workplace violations”; 

instead, the Division is expected only to conduct an “initial investigation and file[] 

citations within the short six month window set forth for administrative action.” By 
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contrast, he claims it is the responsibility of the BOI, and not the Division, to 

“investigat[e] the most serious workplace violations,” which he contends “takes much 

longer.” Thus, in the view of the district attorney, it is unlikely the Division would ever 

be able to pursue the significant civil penalties he has undertaken to enforce in this case, 

and consequently “there [could never] be any enhanced or greater civil penalties assessed 

against the most egregious offenders.” 

Again, there are several flaws in this argument. First, and most significant, 

the assertion that the Division cannot be expected to enforce these most serious civil 

penalty provisions is simply inconsistent with statutory scheme. Labor Code section 

6317 gives the Division explicit authority to do just that. Second, contrary to the district 

attorney’s apparent belief, the Division and the BOI are not separate entities with 

independent investigative responsibilities. The BOI is part of the Division. (Lab. Code,

§ 6315, subd. (a) [“There is within the division a Bureau of Investigations”].) If the 

Division has to make an enforcement decision in a serious case, we have no reason to 

doubt that the BOI would cooperate in that effort to its fullest extent. And finally, there 

is simply no support for the district attorney’s contention that the BOI itself would be 

unable to sufficiently investigate a serious incident within the six-month time frame for 

issuance of citations by the Division. To the contrary, the district attorney’s own 

complaint in this case alleges that the citations issued by the Division against Solus in the 

underlying administrative action were based upon the results of a completed investigation 

and encompassed five “[s]erious” and one “[w]illful” violation. And when the district 

attorney took action after receiving the mandatory referral from the BOI, he alleged the 

right to recover civil penalties against Solus based upon the exact same violations. There 

is simply no basis to infer that the district attorney benefitted from the additional passage 

of time or any enhanced investigation. The allegations are unchanged. 
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Finally, in support of its amicus brief, the Division points out that 

prosecutors have successfully pursued civil penalties without apparent objection in other 

cases, and asked us to take judicial notice of the outcomes in those cases. We declined to 

take judicial notice because the mere fact that some trial courts have allowed such claims 

to proceed without objection does nothing to establish those claims were pursued 

appropriately. “‘It is axiomatic that cases are not authority for propositions not 

considered.’” (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)

DISPOSITION

The petition is denied. Solus is to recover costs of this proceeding.

CERTIFIED FOR PUBLICATION

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

THOMPSON, J.