No Civil Enforcement Of Workplace Safety By Prosecutors Under Consumer Protection Statute.

Defendant manufactures plastic products. In 2009, a water heater exploded, killing two workers instantly. After the incident, California’s Division of Occupational Safety and Health (Cal/OSHA) 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 its investigation, Cal/OSHA charged defendant with five serious safety violations. As required by Labor Code section 6315, Cal/OSHA forwarded its results to the district attorney, who filed felony charges against two persons, including defendant’s plant manager. The district attorney also filed a civil action against defendant. One of the causes of action is an unlawful, unfair and fraudulent business practice under Business and Professions Code section 17200 and another alleges violation of section 17500, and the district attorney requested imposition of civil penalties of up to $2,500/day per employee from November 29, 2007 through March 19, 2009 in each cause of action. Defendant demurred to these two causes of action, contending they were preempted under Fed/OSHA, because a prosecutor’s pursuit of civil penalties under the UCL is not part of California’s workplace safety plan approved by the Secretary. The trial court disagreed, and overruled the demurrer to the district attorney’s two causes of action based on violations of the UCL. The trial court subsequently granted a request to certify the preemption issue as appropriate for early appellate review under Code of Civil Procedure section 166.1. Defendant filed a petition for writ of mandate, which the appellate court denied, but the California Supreme Court granted review and transferred the case back to the appellate court with directions to issue an order to show cause. The second time around, the appellate court granted the writ of mandate, stating: “California’s workplace safety plan, as approved by the Secretary, does not include any provision for civil enforcement of workplace safety standards by a prosecutor through a cause of action for penalties under the UCL. Under controlling law, any part of a state plan not expressly approved is preempted.” (Solus Industrial Innovations, LLC v. Sup. Ct. (The People) (Cal. App. Fourth Dist., Div. 3; February 24, 2014) (As Mod. March 17, 2014) 224 Cal.App.4th 17, [168 Cal.Rptr.3d 275].)