Opinion
G047661
05-25-2018
SOLUS INDUSTRIAL INNOVATIONS, LLC et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Jones Day, Brian A. Sun and Frederick D. Friedman, for Petitioners. No appearance for Respondent. Tony Rackauckas, District Attorney, and Kelly A. Roosevelt, Deputy District Attorney, for Real Party in Interest. 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 Real Party in Interest. Lawrence H. Kay for Construction Employers Association as Amicus Curiae on behalf of Petitioners.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00581868) OPINION 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 with directions. Jones Day, Brian A. Sun and Frederick D. Friedman, for Petitioners. No appearance for Respondent. Tony Rackauckas, District Attorney, and Kelly A. Roosevelt, Deputy District Attorney, for Real Party in Interest. 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 Real Party in Interest. Lawrence H. Kay for Construction Employers Association as Amicus Curiae on behalf of Petitioners.
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A local plastics manufacturer, Solus Industrial Innovations LLC (Solus), installed a residential electric water heater for use in its extrusion operations. In March 2009, the heater exploded, killing two workers. The state Division of Occupational Safety and Health (the Division) referred the case to the local district attorney's office. The district attorney filed criminal charges against Solus' plant manager and maintenance supervisor, and also filed a civil action against Solus itself. The civil action sought penalties for the unsafe operation of the water heater under two Labor Code statutes, sections 6428 and 6429, and also sought remedies for violation of California's occupational safety standards under the state's unfair competition law (UCL) (Bus. & Prof. Code, § 17200), and fair advertising law (FAL) (Bus. & Prof. Code, § 17500). Solus demurred to all four causes of action. The trial court sustained the demurrers to the two Labor Code causes of action, but the court overruled the demurrers to the UCL and FAL causes of action. In each case the court certified the issues as suitable for appellate resolution as a controlling question of law, thereby encouraging both sides to present petitions for writ of mandate to this court.
Section 166.1 of the Code of Civil Procedure provides: "Upon the written request of any party or his or her counsel, or at the judge's discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation. Neither the denial of a request for, nor the objection of another party or counsel to, such a commentary in the interlocutory order, may be grounds for a writ or appeal."
This court summarily denied the district attorney's petition in regard to the two Labor Code section causes of action, and also summarily denied Solus' petition in regard to the UCL and FAL causes of action. However, the Supreme Court granted both sides' petitions for review, directing us to issue an order to show cause.
The result was two separate opinions filed the same day (Feb. 24, 2014), one dealing with the Labor Code sections (People v. Superior Court (Solus Industrial Innovations, LLC) (2014) 224 Cal.App.4th 33), the other dealing with the UCL and FAL causes of action (Solus Industrial Innovations, LLC v. Superior Court (2014) 224 Cal.App.4th 17 (Solus I), rev. granted June 18, 2014, S217651.) Following Safer v. Superior Court (1975) 15 Cal.3d 230, the People v. Superior Court case determined that the district attorney's office had no standing to pursue civil penalties under the two Labor Code sections; that was a matter for the Division. (See People v. Superior Court, supra, 224 Cal.App.4th at pp. 37, 40-41.) The People v. Superior Court case survived a petition for review and remains good case law to this day.
Solus I, as our citation has indicated, had a more difficult path. Solus I held that federal law preempted the district attorney's attempt to bring civil UCL and FAL causes of action based on workplace safety violations. The Supreme Court granted review in June 2014, directing this court to "reconsider the matter in light of Statutes 1972, chapter 1084, pp. 2020-2021," aka former Civil Code section 3370.1. In September 2014, this court then issued Solus Industrial Innovations, LLC v. Superior Court (2014) 229 Cal.App.4th 1291 (Solus II), rev. granted Jan. 14, 2015, S222314). Again we concluded the UCL and FAL causes of action were preempted by federal law, and again we granted Solus' petition to have its demurrer to those causes of action sustained.
In January 2015, the Supreme Court granted review yet again, but this time the high court issued its own opinion, Solus Industrial Innovations, LLC v. Superior Court (2018) 4 Cal.5th 316 (Solus III). Solus III has now established that the district attorney's UCL and FAL causes of action are not preempted by federal law, i.e., that this court should never have granted Solus' petition for writ of mandate challenging those causes of action in the first place.
One final task remains for us in the wake of Solus III - but a much easier one than we faced in Solus I and Solus II - because the Supreme Court has spelled it out. Following Solus III, we hereby vacate our earlier order granting Solus' petition for writ of mandate, and now deny that petition. (See Solus III, supra, 4 Cal.5th at pp. 347-348.) We remand this matter to the trial court for further proceedings.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.