SOLUS INDUSTRIAL INNOVATIONS v. S.C.

Petitioners’ Answer Brief on the Merits

Cal.March 17, 2015

No. $222314 iO) yw IN THE SUPREME COURT OF THE > STATE OF CALIFORNIA SOLUS INDUSTRIAL INNOVATIONS, LLC; EMERSON POWER TRANSMISSION CORPORATION;and EMERSON ELECTRIC CoO., Petitioners, Vv. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF ORANGE, Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA, Real Parties in Interest. Appeal from a Published Opinion of the Court of Appeal, Fourth Appellate District, Division 3, No. G047661 From the Superior Court, County of Orange Civil Case No. 30-2012-00581868-CU-MC-CXC The Honorable Kim G. Dunning, Department CX104 ANSWERBRIEF ON THE MERITS Brian A. Sun (SBN 89410) Frederick D. Friedman (SBN 73620) SUPREME COURT JONES DAY é | i E rT) 555 South Flower Street, Fiftieth Floor a Los Angeles, CA 90071-2300 Telephone: (213) 489-3939 Email: ffriedman@jonesday.com MAR TT 2015 rrank 4. MeGuire Clerk Counselfor Petitioners SOLUS INDUSTRIAL INNOVATIONS,LLC,etal. Deputy No. 8222314 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SOLUS INDUSTRIAL INNOVATIONS, LLC; EMERSON POWER TRANSMISSION CORPORATION;and EMERSON ELECTRIC CoO., Petitioners, Vv. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF ORANGE, Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA, Real Parties in Interest. Appeal from a Published Opinion of the Court of Appeal, Fourth Appellate District, Division 3, No. G047661 From the Superior Court, County of Orange Civil Case No. 30-2012-00581868-CU-MC-CXC The Honorable Kim G. Dunning, Department CX104 ANSWERBRIEF ON THE MERITS Brian A. Sun (SBN 89410) Frederick D. Friedman (SBN 73620) JONES DAY 555 South FlowerStreet, Fiftieth Floor Los Angeles, CA 90071-2300 Telephone: (213) 489-3939 Email: ffriedman@jonesday.com Counselfor Petitioners SOLUS INDUSTRIAL INNOVATIONS,LLC,et al. TABLE OF CONTENTS Page I. INTRODUCTION.......ceccccsccseesecsceseeeceeesneeseeseseeesessesseeseseresseseeeenes 1 Il. COUNTER-STATEMENTOFISSUES10... eeeeccecsecseeeeeereeeneeeens 2 Tl. STATEMENT OF THECASE...ccccccccssssteesesereeeneessesneesasesneees 2 A. PArti€S ......ccccccsccsseccssecsscesecsecececesceecestevsssenesesseeesssesseneeeeeseeeens 2 B. Cal/OSHAInvestigates and Issues Citations... 3 C. The District Attorney Files Copycat Civil Lawsuit Based on Same Alleged Violations of Workplace Safety Standards... cssccsessecsesersensessesersetecsecenectssnseneetes 3 D. Defendants File Demurrer.........ccccescesssessssesseeessesseesereeesenees 4 E. The Court of Appeal’s First Ruling .........ccssceseeererereeees 4 F, The Court of Appeal’s Second Ruling... 5 TV. ARGUMENT.u.....cccccececeseccssceessreseeeeneeessnseesscesssessseessasenseesnesesaeeseenas 6 A. OSHAPreempts State Workplace Safety Regulations Absent Federal Approval of a State Plan..........ccsseereeneeeees 6 B. The UCL and FAL Claims Are Preempted Because the U.S. Secretary of Labor Did Not Approve Them................. 9 C. The District Attorney’s Efforts to Avoid the Gade Preemption Analysis Should Be Rejected «00...sss 11 l. A “Presumption Against Preemption” Does Not Allow the State to Bypass Federal Approval............ 12 2. Stricter State Enforcement of Workplace Safety is Permissible But Still Requires Federal Approval.....:cssssscsssesesseseeeeesesensctecsetesseeeereeneseeeeeenes 16 3. California’s Approved Plan Does Not Authorize Enforcement Through Civil Actions .........cceeeee 19 4, Public Policy Arguments Must Be Weighed by the U.S. Secretary of Labor-Notthe Courts........... 24 V. CONCLUSION..e..cecccsccsscesseeneesesseeseerseseeeeseeeeesseseeeseecnesneesinenneeras 28 TABLE OF AUTHORITIES Page CASES Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805 oceecsseesseeseeeeccssesessssesesessssssesseesesesenes 27 California Lab. Federation v. Occupational Safety & Health Stds. Bd. (1990) 221 Cal.App.3d 1547 occescsseseesssessrseseeeeens 9, 14, 15, 16, 17 Gade v. Nat. Solid Wastes ManagementAssn. (1992) 505 U.S. 88 .oeceeeececcseecesseeteeseeseesseeesssseaeeeesssesensesseessaseees passim Industrial Truck Assn., Inc. v. Henry (9th Cir. 1997) 125 F.3d 1305ceeeesecesteessseerseseesesccssessseeeeeaes 8, 14 Kelly v. USS-POSCO Industries (9th Cir. 2003) 101 FedAppx. 182 0... ccccsessseteseeseeeeseeesseeeees 10, 11 Kodadek v. MTVNetworks, Inc. (9th Cir, 1998) 152 F.3d 1209oicccecsessenseseeseetseestesersersesnecteeeenee 15 Loskouski v. State Personnel Bd. (1992) 4 Cal.App.4th 453 oo. scscccssssesessesersesessenssessessnecnenersesesessenenes 8 People ex rel. Dept. ofTransportation v. Naegele Outdoor Advertising Co. (1985) 38 Cal.3d 509 oeeeccecesscesssesseessesesscnseneceesaetsersesssssereesserneeey 15 People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772 oo. eeecsssessesseseesseseeseeeesesseseesseceestecestaeereseneneneny 13 People v. Stanley (1995) 10 Cal.4th 764 oo.eceesesssesescerssteseesssessesenesnecsenecseneenerseeesnenes 19 People v. Superior Court (Solus I) (2014) 224 Cal.App.4th 33, review dem .........ceeeeseereren 4, 19, 20, 22, 23 Rojas v. Superior Court (2004) 33 Cal.4th 407 oceeeccsssecssesseersssesseceesssersnsssesteessersreeeereeseens 22 Rose v. Bank ofAmerica, N.A. (2013) 57 Cal4th 390 ceeesecesseecsesesseseneeesseseseessesterseeesscnenesesareeeneaens 18 il TABLE OF AUTHORITIES (continued) Page Silvas v. E*Trade Mortgage Corp. (9th Cir. 2008) 514 F.3d 100] occcscsessssessesesereeseeeseeeseesesseeenes 16 Solus Industrial Innovations, LLC y. Superior Court (Solus II) (2014) 224 Cal.App.4th 17, superseded after remand...eens 5 Solus Industrial Innovations, LLC v. Superior Court (Solus [ID (2014) 229 Cal.App.4th 1291, review granted ...........eccceseteeeee passim United Air Lines, Inc. v. Occupational Safety & Health Appeals Bad. (1982) 32 Cal.3d 762 ....ccccesssscesereressssessscseseessenessessessaeseessesessesersnenesees 26 Washington Mutual Bank, FA v. Superior Court (2002) 95 Cal.App.4th 606 wc cceecsscssseseessssserenesteseensertesseeeetseaees 6, 15 West Virginia Manufacturers Assn. v. State of West Virginia (4th Cir, 1983) 714 F.2d 308iecccceseeseseseeeneesenesseeeeteseeaeeeenesereeneney 18 STATUTES 29 UVS.C. § 651 cecccccccsccseccteesesenencesssessesessscenssesseeseessesessersessesseaeeesensseenenaees 1 29 U.S.C. § 667(D) ..cscecesecssesererssssssessesessecsessensceseesseseseeesaeeneenerneneesesy 1,7, 18 29 US.C., § 667(L) .cecccscecescscescsenessssesssnsesssesssssesesseseesetecaeenersesenaseesseresseneney 18 Business and Professions Code, § 17200 (UCL) ou... ecececesseereeeeees passim Business and Professions Code, § 17500 (FAL)........cccccccccessreeetteeeeees passim Civil Code, § 3370.1 v..cceessecesesenscssscsesseessensesscsesseessseeesserseenesnaesasenntaens 5,6 Labor Code § 6315 ..ccccscsssssssssssesscesseeeeenessecsseeaseseenecsnsentecaeerateaeens 20, 21, 22 Labor Code, § 6315, SUD. (2)... ceccesseseeereeeereseeteereeetaees 19, 20, 21, 23, 24 Labor Code § 6317 vo... ccescesscsssesssssseessncenssessesnsasenseecneesnsneeersaeees 3, 10, 20, 22 Labor Code § 6423 ....cscsccssssssssssevseecsessscssesssssecsesscensersaesneecaeeasenesseenesseeges 21 Labor Code § 6425 .......ccicssscsscssessseeneseeneensersesieensereeneeseasersereessereeasenenees 21 iti TABLE OF AUTHORITIES (continued) Page Labor Code § 6428 ......ccccccccccscsscssseeseecsceseseseseessesesaeesssneeesseeenees 3, 5, 20, 22 Labor Code § 6429... ecesecsscecssccteeessnreeeereesseaseseseseossneeaueneseenaes 3, 5, 20, 22 Occupational Safety and Health Act...eeccsseecesseeseeesesssesessenseenee passim Safe Drinking Water and Toxic Enforcement Act of 1986...passim OTHER AUTHORITIES 29 C.F.R. § 1952, subpartKaesseceessneresseesesessteeeessssseesenes 9, 10, 11 29 CAFR. § 1952.170(8)..ccccccecssssccsserseeecsessecsecsecsesasceeesesssesessseseesseseseeees 9 Cal. Code Regs., Title 8, § 344.50 oiceececsessereeteessesssseeeenecsessssssessssenes 22 Cal. Code Regs., Title 8, § 344.51 oieescsccessescntenseerseeeesnsnessserseseeeens 22 Cal. Code Regs., Title 8, § 467(a).....cccccccscssesssesseetsceteeesseeeensensensesseseneeaes 3 Cal. Code Regs., Title 8, § 3328(€) 0.cccecssesscseseesecseeseeseseesensessennesennernes 3 Cal. Code Regs., Title 8, § 3328(D) ..o.cceccccsesesseteessesesnsesesesesssersnereesees 3 Cal. Code Regs., Title 8, § 3328(f) oc. eccecscesseeressesseereeeseeerersessessessessessesnees 3 Cal. Code Regs., Title 8, § 3328(h) .......ccessesssessereeseeeeneeeneseneerssenesseenessees 3 Cal. Dept. of Industrial Relations, Division of Labor Standards Enforcement, Chief Counsel H. Thomas Caddell, Jr., opinion letter, Multiplicity of Actions (Apr. 19, 1995), available at http://www.dir.ca.gov/dlse/opinions/1995-04-19.pdf...cece 27 62 Fed.Reg. 31159 (June 6, 1997) .ocecceccsseseeeeeteceeseeteseenseseneesenees 9,17 iv I. INTRODUCTION The Occupational Safety and Health Act (“OSHA”) preempts any state regulation of workplace safety issues covered by federal standards absent a “State plan for the development of such standardsandtheir enforcement” that has been approved by the U.S. Secretary of Labor. (29 U.S.C. §§ 651, 667(b).) As a result, to avoid federal preemption,states must adhereto their approved plans when enforcing any workplace safety standard that relates to a federal standard. (Gade v. Nat. Solid Wastes Management Assn. (1992) 505 U.S. 88, 102-104 (Gade).) This remains true even if the unapprovedassertion of state jurisdiction is consistent with federal law andis “designed to promote workersafety.” (/d. at p. 103.) The District Attorney argues that prosecutors should be permitted to use the Unfair Competition Law (UCL) and False Advertising Law (FAL) to enhance workplace safety through civil penalties. But as the District Attorney admits, the U.S. Secretary of Labor has approved neither the UCL nor FALas part of California’s “plan for the development of [workplace safety] standards and their enforcement.” (29 U.S.C. § 667(b).) Instead, the approved California state plan vests the state Division of Occupational Safety and Health (“Cal/OSHA”) with the exclusive authority to seek civil penalties, and Cal/OSHA hasalready exercised that authority in this case. Accordingly, the Court of Appeal correctly held that the District Attorney’s UCL and FALclaimsfor civil penalties are preempted by federal OSHA. Il. COUNTER-STATEMENT OF ISSUES The District Attorney carefully frames his “Statement of the Issues” to avoid addressing whether the UCL and FAL wereactually included as part of any California workplace safety plan approved by the U.S. Secretary of Labor. The Court of Appeal, however, correctly framed the issue as follows: Does federal OSHA preempt the UCL and FAL as enforcement mechanisms for workplace safety standards, because California never included the UCL or FAL aspart of any California workplace safety plan that was approved by the U.S. Secretary of Labor? Ill STATEMENT OF THE CASE A. Parties The District Attorney filed this lawsuit, alleging four causes of action for violation of worker health and safety standards promulgated by Cal/OSHA. TheDistrict Attorney’s claimsarise out of an incident in March 2009ata facility owned by defendant Solus Industrial Innovations, LLC (“Solus”) [A1-39.] In 2007, Solus installed an electric water heater for use in its plastics manufacturing operations. (A2 [Compl. § 3].) In December 2008, defendants Emerson Power Transmission Corp. and Emerson Electric Co. (collectively, “Emerson”) acquired a Solus affiliate in Italy. (A4-5 ' Citations to “A __” are to the page numberof the one-volume appendix filed in the Court of Appeal. [Compl. J 13].) On March 19, 2009, the water heater exploded,killing two Solus employees. (Al-2 [Compl. { 1].) B. Cal/OSHAInvestigates and Issues Citations After the accident, Cal/OSHA openedaninvestigation and cited Solus (but not Emerson)with five “serious” violations of sections 467(a), 3328(a), 3328(b), 3328(f), and 3328(h)ofTitle 8 of the California Code of Regulations. (A12 [Compl. § 43].) Cal/OSHAalso cited Solus (again, not Emerson) with one “willful” violation of section 3328(g) ofTitle 8 of the California Code of Regulations. (/bid.) Based on its authority under Labor Codesection 6317, Cal/OSHAissued a Citation and Notification of Penalty, imposing civil penalties under Labor Codesection 6428 for the five alleged “serious”violations, and civil penalties under Labor Code section 6429 for onealleged “willful” violation. (/d.; see also A71-86.) C. TheDistrict Attorney Files Copycat Civil Lawsuit Based on SameAlleged Violations of Workplace Safety Standards On July 6, 2012, the Orange County District Attorneyfiled this lawsuit, alleging causes of action under Labor Code sections 6428 and 6429 and Business and Professions Code sections 17200 and 17500. The District Attorney’s Complaintrelies entirely on the same facts, statutory sections, and regulations at issue in Cal/OSHA’s administrative proceeding. (Compare A14 [Compl. { 43] with Compl. {f] 54, 60-61, 64-66, 69-75.) D. Defendants File Demurrer Defendants demurredto all four causes of action in the Complaint. (A40-61.) On the first two causes of action, defendants argued that the California Legislature had not authorized the district attorneys to bring suit under the Labor Code. Defendants also contended that federal law preemptedall four causes ofaction, because the California workplace safety plan approved by the U.S. Secretary of Labor doesnotinclude enforcement of worker health and safety standards throughoriginalcivil actions brought by district attorneys in the superior courts. The Superior Court heard oral argument on defendants’ demurrer. Recognizing that the complaint trespasses on the work of Cal/OSHA,the Superior Court sustained defendants’ demurrerto the first two causes of action, but overruled the demurrer as to the second two causesofaction. (A230-231.) E. The Court of Appeal’s First Ruling Defendants and the District Attorney both petitioned the Court of Appealfor writs of mandate or other appropriate relief. After the Court of Appeal summarily denied both petitions, both sides petitioned this Court for review. This Court directed the Court of Appeal to review both petitions arising out of the Superior Court’s decision. The Court of Appeal heard oral argument on December 19, 2013, and entered its opinionsin both matters on February 24, 2014. In People v. Superior Court (2014) 224 Cal.App.4th 33 (Solus I), review den., the Court of Appealaffirmed the Superior Court’s decision sustaining defendants’ demurrer tothe first two causes of action, holding that the District Attorney lacked standingto file civil actions under Labor Code sections 6428 and 6429. In Solus Industrial Innovations, LLC v. Superior Court (2014) 224 Cal.App.4th 17 (Solus 1), superseded after remand by 229 Cal.App.4th 1291, review granted, the Court of Appeal held that federal law preempted the District Attorney’s claims under the UCL and FAL. The District Attorney moved for reconsideration of the Court of Appeal’s decision in Solus IJ. The Court of Appeal amendedits order relating to preemption by deleting “without leave to amend”from thatpart of the decision giving instructionsto the trial court on remand. TheDistrict Attorney then petitioned this Court for review. In the Petition for Review, the District Attorney noted that the Court of Appeal stated that the UCL was enacted in 1977, which is when the UCL wasrecodified as Business and Professions Code section 17200. This Court grantedthepetition for review andtransferred the case backto the Court of Appeal “with directions to reconsider the matterin light of Statutes 1972, chapter 1084, pp. 2020-2021.” F. The Court of Appeal’s Second Ruling After receiving the case back from this Court, the Court of Appeal requested supplemental briefing to address former Civil Codesection 3370.1 (as reflected in Stats. 1972, ch. 1084, § 2, pp. 2020-2021). The parties each submitted supplementalbriefs, and the Court of Appeal issued a revised opinion that specifically addresses former Civil Code section 3370.1. Again, the Court of Appeal ruled that the District Attorney’s claims under the UCL and FALare preempted by federal law. (Solus Industrial Innovations, LLC v. Superior Court (2014) 229 Cal.App.4th 1291 (Solus ID), review granted.) The District Attorney moved for reconsideration again, and the Court of Appeal again amendedits orderrelating to preemption by deleting “without leave to amend”from that part of the decision giving instructions to the trial court on remand. The District Attorney then filed a Petition for Review, which this Court granted. IV. ARGUMENT A. OSHA Preempts State Workplace Safety Regulations Absent Federal Approvalof a State Plan. “Congress has the authority to preempt state law byvirtue of the supremacyclause of the United States Constitution, which provides that ‘laws of the United States .. . shall be the supreme law ofthe land; and the judgesin every state shall be boundthereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.” (Washington Mutual Bank, FA y. Superior Court (2002) 95 Cal.App.4th 606, 612 (Washington Mutual), quoting U.S. Const., art. VI, cl. 2.) In Gade, supra, the U.S. Supreme Court determined that Congress enacted OSHA“to promote occupational safety and health while at the same time avoiding duplicative, and possibly counterproductive, regulation.” (505 U.S. at p. 102.) To achieve these goals, OSHA “established a system of uniform federal occupational health and safety standards, but gave States the option of pre-empting federal regulations by developing their own occupational safety and health programs.” (/bid.) OSHA,however, provides that any state plan for the development and enforcement of workplace safety standards must be submitted for approval by the U.S. Secretary of Labor: Any State which,at any time, desires to assumeresponsibility for development and enforcementtherein of occupational safety and health standardsrelating to any occupationalsafety or health issue with respect to which a Federal standard has been promulgated undersection 655 ofthis title shall submit a State plan for the developmentof such standards andtheir enforcement. (29 U.S.C. § 667(b), italics added.) Accordingly, the U.S. Supreme Court concludedthat “the OSH Act precludes any state regulation of an occupational safety or health issue with respect to which a federal standard has been established, unless a state plan has been submitted and approved” by the U.S. Secretary of Labor. (Gade, supra, 505 USS.at p. 102, italics added.) The Supreme Court also noted that the scope of this preemption includes any state law that “‘interferes with the methods by whichthe federal statute was designed to reach th[at] goal... .” [Citation.].” (Gade, supra, 505 U.S.at p. 103, italics added, brackets in original.) In other words, “States are not permitted to assume an enforcementrole without the Secretary’s approval ....” (/d. at p. 101.) Further, OSHA preemption of state law over issues related to federal workplace safety standardsis complete: The scope of preemption in each area in which a federal standard has been promulgated is complete. All state regulationsrelating to the “issue” of a federal standard are preempted evenifthey do not conflict with the federal scheme. Undustrial Truck Assn., Inc. v. Henry (9th Cir. 1997) 125 F.3d 1305, 1310 (Industrial Truck), citing Gade, supra, 505 U.S.at p. 103.) California courts have faithfully applied the Gade preemption analysis. In an earlier case, the Court of Appealheld that federal OSHA “permits a state to enforce its own OSHAregulationsin areas subject to federal standards only after the state plan has been approved by Fed/OSHA.” (Loskouski v. State Personnel Bd. (1992) 4 Cal.App.4th 453, 456,italics added.) In other words, “unless a state occupational safety and health law is incorporated in an approved state plan,it will be preempted to the extent it covers subject matter as to which there is a federal standard.” (California Lab. Federation v. Occupational Safety & Health Stds. Bd. (1990) 221 Cal.App.3d 1547, 1552 (Cal. Lab. Fed.), italics added.) B. The UCL and FAL Claims Are Preempted Because the U.S. Secretary of Labor Did Not Approve Them. California submitted its workplace safety plan to the U.S. Secretary of Labor, who approvedthat plan. (29 C.F.R. § 1952.170 et seq. [subpart K].) The approved California plan, however, does not provide for enforcementbythe district attorneys throughoriginalcivil actions filed in the superior courts. (See 29 C.F.R. § 1952.170(a); see generally 29 C.F.R. § 1952, subpart K.) Instead, the approved California plan calls for enforcement by Cal/OSHA,with administrative adjudications entrusted to the Occupational Safety and Health Appeals Board: The State’s program will be enforced by the Division of Industrial Safety of the Departmentof Industrial Relations of the California Agriculture and Services Agency. ... Administrative adjudications will be the responsibility of the California Occupational Safety and Health Appeals Board. (29 C.F.R.§ 1952.170(a).) In addition, our Legislature specifically providedthat only Cal/OSHA mayseekcivil penalties for violation of the regulations at issue: “The division [Cal/OSHA] may imposea civil penalty * See also 62 Fed.Reg. 31159, 31160 (June 6, 1997) (“The Occupational Safety and Health Act generally preempts any State occupational safety and health standard that addresses an issue covered by an OSHAstandard, unless a State plan has been submitted and approved.”). against an employeras specified in Chapter 4 (commencing with Section 6423) of this part.” (Lab. Code, § 6317.) Indeed, the California workplace safety plan does not include the UCL or FAL. (See 29 C.F.R. § 1952, subpart K.) The People admitthis factual point in paragraph 11 of their Return to the Petitioner’s Petition for Writ of Mandate, filed in the Court of Appeal on June 10, 2013. Moreover, it does not matter when the UCL and FAL were enacted. The relevant point is that neither the UCL nor FAL werepart of any California plan approved by the U.S. Secretary of Labor.’ This same preemption issue was addressed by the Ninth Circuit in Kelly v. USS-POSCO Industries (9th Cir. 2003) 101 Fed.Appx. 182 (Kelly). In Kelly, the plaintiff asserted a UCL claim based on her former employer’s allegedly inadequate workplace safety training program. (/d. at p. 184.) The Ninth Circuit noted that UCL section “17200 is not part of California's approved occupational health and safety plan.” (/bid.) In an amended complaint, the plaintiff had removed any reference to workplace safety standards, but this did not changethe fact that “her unfair business practices 3 Of course, because the UCL and FAL predated California’s worker safety plan, yet were not includedaspart of that plan, then the conclusion must be that the State of California did not consider those statutes to be part of the workersafety plan. To the extent the District Attorney is trying to suggest that the U.S. Secretary of Labor had presumed knowledge of the UCL and FAL whenapproving the California state plan, the Court of Appeal’s opinion thoroughly debunksthis suggestion. (Solus III, supra, 229 Cal.App.4th at pp. 1303-1305.) 10 claim is intrinsically related to occupational health and safety andis preempted by OSHA.” (/bid.) Accordingly, the Ke/ly court applied the Gade preemption analysis and affirmed the dismissal of the plaintiff's UCL claim on the pleadings. (/bid.) Likethe plaintiff in Kelly, the District Attorney in this caseis attempting to enforce workplace safety standards through the Business and Professions Code. But again, neither the UCL nor FALispart of California’s workplace safety plan approved by the U.S. Secretary of Labor. (See 29 C.F.R. § 1952, subpart K; see also Kelly, supra, 101 Fed. Appx.at p. 184.) And it makes no difference whether the unapproved “manner of enforcement” is an unapprovedcivil lawsuit filed by a private plaintiff or an unapprovedcivil lawsuit filed by a district attorney. Accordingly, federal law preempts the District Attorney’s UCL and FAL claims. (See Gade, supra, 505 U.S. at p. 105; Kelly, supra, at p. 184.) C. The District Attorney’s Efforts to Avoid the Gade Preemption Analysis Should Be Rejected. The District Attorney allocates a significant portion ofhis brief trying to fashion an argumentthat the Gade preemption analysis does not apply to the UCL and FAL,and explaining whyhethinks “supplemental actions by prosecutors” to enhance workplace safety standards are good public policy. As further explained below, the Gade preemption analysis applies equally to the UCL and FALasthe underlying workplace safety 11 standards where, as here, the UCL and FALare being used to enforce those workplace safety standards. Any different conclusion would eviscerate the U.S. Secretary of Labor’s authority to determine whether such enforcement mechanismsare consistent with public policy and permissible under OSHA. 1. A “Presumption Against Preemption” Does Not Allow the State to Bypass Federal Approval. The District Attorney argues that the UCL and FAL “are laws of general applicability” and “there is a strong ‘presumption against preemption’ that protects these laws from preemption.” (Op. Br. at p. 2, citing Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1088.) The District Attorney’s argument, however, ignores OSHA’s express requirementthat state plans for development and enforcement of workplace safety laws must be approved by the U.S. Secretary of Labor. As the Court of Appeal reasoned,the District Attorney cannot use a “presumption against preclusion” to avoid obtaining the U.S. Secretary of Labor’s approval: Because the OSH Act allowsa state to avoid federal preemption only if it obtains federal approval of its own plan, it necessarily follows that a state has no authority to enact and enforce laws governing workplace safety which fall outside of that approved plan. The OSH Act expressly requires a state to comply with its approved plan, and allowsthe Secretary to rescind approvalofthe plan if the state fails to do so. (29 U.S.C., § 667(f).) Under this statutory scheme, we conclude the approvedstate plan operates, in effect, as a “safe harbor” within which the state may exercise its jurisdiction. 12 It is only whenthe state stays within the terms ofits approved plan, thatits actions will not be preempted byfederal law. (Solus III, 229 Cal.App.4th at pp. 1306-1307, italics added [distinguishing Farm Raised Salmon Cases (2009) 42 Cal.4th 1077].) In other words, the District Attorney is attempting to use the UCL and FAL not under any historic police powers, but as a device to seek civil penalties not authorized by California’s workplace safety plan and without U.S. Secretary of Labor’s approval. The District Attorney’s attempt to make an end run aroundthe legislative and federal administrative processes is exactly what Gade preemption is meantto prevent.’ The Court of Appeal’s conclusionthat the state mustfollow its workplace safety plan approved by the U.S. Secretary of Labor only makes sense. As the Ninth Circuit has explained, allowing a state to changeits plan after approval would render the Secretary of Labor’s review of the plan meaningless: [A] state may not submit some regulations on a workersafety issue to OSHA aspart ofits state plan and omit other regulations relating to the same issue from the plan. The omitted regulations, even if complementary to the [OSH] Act’s scheme,are subject to the “background pre-emption” of the federal standard. ... Jt would make the state plan 4 For the same reasons, other cases that analyze whetherstate laws improperly regulate areas of federal regulation based on a “presumption against preemption”are alsoeasily distinguishable. (See, e.g., People ex rel, Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 782- 787 [analyzing whether the Federal Aviation Administration Authorization Act preempts the UCL].) 13 approval requirement superfluous ifa state couldpick and choose which occupational health and safety regulations to submit to OSHA. Undustrial Truck, supra, 125 F.3d at p. 1311, italics added; see also Cal. Lab. Fed., supra, 221 Cal.App.3d at pp. 1558-1559 [directing Cal/OSHA to add toxic chemical regulations to state plan and submit to U.S. Secretary of Laborfor approval].) The District Attorney also cannot avoid the Gade preemption analysis by arguing that the UCL and FALare “consumerprotection laws” that apply outside the context of workplace safety. As the U.S. Supreme Court has explained, state laws are preemptedifthey are being used to regulate workplace safety without the U.S. Secretary of Labor’s approval: A state law also is pre-emptedif it interferes with the methods by which the federal statute was designed to reach th[at] goal. ... The OSH Actdoesnot foreclose a State from enacting its own lawsto advancethe goal of workersafety, but it does restrict the ways in which it can do so. Ifa State wishes to regulate an issue of worker safety for which a federal standardis in effect, its only option is to obtain the prior approvalofthe Secretary of Labor.... (Gade, supra, 505 U.S. at pp. 103-104, internal quotation marks and citations omitted, bracketing in original.) A prime example is Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986), which requires health warnings for carcinogen exposure. In California Labor Federation, supra, the Court of Appeal rejected an argumentthat Proposition 65 was not a workplace 14 safety law “simply becauseit also applies outside the workplace and exempts certain employers [with 10 or fewer employees] from its requirements.” (221 Cal.App.3d at p. 1557.) Here, the District Attorney is admittedly attempting to “enhance” workplace safety by assessing penalties under the UCL and FAL for alleged workplace safety violations. (Op. Br. at p. 41.) But just as Proposition 65 could not be used to enforce workplace safety standards without the U.S. Secretary of Labor’s approval, the UCL and FAL cannot be used to enforce workplace safety standards without the U.S. Secretary of Labor’s approval. Indeed, courts routinely hold that other federal laws completely preempt the UCL and/or FAL onspecific areas of regulation. This Court held that the federal Highway Beautification Act preempts the UCL. (People ex rel. Dept. ofTransportation v. Naegele Outdoor Advertising Co. (1985) 38 Cal.3d 509, 523.) The Court of Appeal held that a federal regulation adopted under the Home Owners’ Loan Act preempted a state law claim under the UCL. (Washington Mutual, supra, 95 Cal.App.4th at pp. 612, 621.) The Ninth Circuit held that the Copyright Act completely preempts any attemptto use the UCLas a surrogate for a copyright claim. (Kodadek v. MTV Networks, Inc. (9th Cir. 1998) 152 F.3d 1209, 1213.) The Ninth Circuit also held that both the UCL and FAL were preempted by 15 the Home Owners’ Loan Act. (Silvas v. E*Trade Mortgage Corp. (9th Cir. 2008) 514 F.3d 1001, 1008.) Finally, the District Attorney attempts to distinguish its UCL claims from its FAL claims by arguing that its FAL claims do not rely upon any specific workplace safety standard. The District Attorney’s FAL claims, however, are based uponallegations that Solus falsely advertised its compliance with the same workplace safety standards upon which the District Attorney’s UCL claimsare based. Indeed, the District Attorney could not prove that Solus falsely advertised its compliance with workplace safety standards without proving that Solus violated some workplace safety standards. Asresult, the same preemption analysis applies to the District Attorney’s claims under both the UCL and FAL. 2. Stricter State Enforcement of Workplace Safety is Permissible But Still Requires Federal Approval. The District Attorney also argues that nothing in OSHAprecludes a state “from adopting morestringent enforcement regulations than the federal governmentat any time.” (Op. Br.at p. 24.) There is no dispute aboutthis, except that the U.S. Secretary of Laborstill must approve the morestringent state enforcementregulations included within the state’s workplace safety plan. Proposition 65 again provides a prime example. As discussed above, the California Labor Federation court issued a writ compelling the Cal/OSHA Board to submit Proposition 65 to the US. 16 Secretary of Labor for possible approval that would avoid federal preemption of workplace violations. (Cal. Lab. Fed., supra, 221 Cal.App.3d at p. 1559.) The U.S. Secretary of Labor preliminarily determined that the private right of action under Proposition 65 met the criteria for approval. (62 Fed.Reg. 31159, 31162 [June 6, 1997].) The U.S. Secretary of Laborthen received statements from 207 commentators, many of whom opposed approval. (/d.) Upon considering the public comments, the U.S. Secretary of Labor approvedthe private right of action under Proposition 65 but with restrictions on claims against out-of-state manufacturers. (/d. at pp. 31166-31167, 31180.) In doing so, the U.S. Secretary of Laborspecifically discussed the Gade preemptionanalysis. (Id. at pp. 31160, 31163, 31166.) While California’s “manner of enforcement” for Proposition 65 may have differed from the federal approach, it does not follow-asthe District Attorney suggests-thatthe state can bypass obtaining approval from the U.S. Secretary of Labor. The U.S. Secretary of Labor wasstill required to review Proposition 65 as it applied to workplaces and ultimately limited the “manner of enforcement” in the workplace based on that review. (Solus III, supra, 229 Cal.App.4th at pp. 1307-1308.) Again, a state’s authority to establish and enforce workplace safety laws “is expressly conditioned on submission ofa proposed state plan to the Secretary-aplan whichreflects not only the state's establishment of appropriate workplace safety 17 requirements, but also the mannerin which those requirements will be enforced and the remedies provided-and the Secretary's approval of that specific plan.” Cd. at pp. 1305-1306.) As the Court of Appeal also noted, “this retained federal powerto approveor disapprove thestate’s laws . . also distinguishes the federal preemption schemeat issue here from the one recently considered by our Supreme Court in Rose v. Bank ofAmerica, N.A. (2013) 57 Cal.4th 390 (Rose).” (Solus II, supra, 229 Cal.App.4th at p. 1306.) Rose dealt with a federal statute (the Truth in Savings Act) that included a clause explicitly saving consistent state laws. (Rose, supra, 57 Cal.4th at p. 395.) By contrast, OSHArequiresthat even consistent state laws be submitted to and approved by the Secretary of Labor (29 U.S.C. § 667(b)) and provides for further federal oversight and approval (29 U.S.C. § 667(f)). The District Attorney also cites a handful of foreign cases as support for a state to adopt morestringent enforcement than federal regulations. (Op. Br. at pp. 35-36.) Those foreign cases, however, do not excuse the state from obtaining the necessary approval from the U.S. Secretary of Laboror otherwise allow a state to sidestep the Gade preemption analysis that applies here. In fact, the only civil case cited by the District Attorney does not involve a state failing to follow its own workplace safety plan and applies a “purpose”test that the U.S. Supreme Court later rejected in Gade. (See West Virginia Manufacturers Assn. v. State of West Virginia (4th Cir. 18 1983) 714 F.2d 308, 313-314.) The others are criminal cases that rely upon OSHA’ssavings clause and a state’s historical police power to seek retributive justice. (See Op. Br. at pp. 35-36, and casescited therein.) Regardless, as further discussed below, the California state workplace safety plan specifically authorizes referrals from Cal/OSHA to district attorneys for potential criminal prosecutions. (Labor Code, § 6315, subd. (g).) Accordingly, California’s criminal referral process was approvedbythe U.S. Secretary of Labor. By contrast, the District Attorey’s attempt to use the UCL and FALto seek civil penalties for alleged workplace safety violations was not. 3. California’s Approved Plan Does Not Authorize Enforcement Through Civil Actions. Alternatively, the District Attorney arguesthat the California state plan generally allows “supplementalactions by prosecutors”to enhance and support the efforts of Cal/OSHA. Thelinchpin of the District Attorney’s argumentis the criminal referral provision in Labor Code section 6315, subdivision (g). The Court of Appeal, however, soundly rejected the District Attorney’s interpretation of Labor Codesection 6315, subdivision (g) in Solus I, supra, 224 Cal.App.4th at p. 44, review den. This ruling is now the law ofthe case. (See People v. Stanley (1995) 10 Cal.4th 764, 786 [“Th[is] principle applies to criminal as well as civil 19 matters [citations], and it applies to this court even though the previous appeal was before a Court of Appeal [citation].”’].) In Solus I, the District Attorney argued that Labor Codesection 6315, subdivision (g) authorized the district attorneys to seek civil penalties for alleged workplace safety violations by filing lawsuits under Labor Code sections 6428 and 6429. (Solus I, supra, 224 Cal.App.4th at p. 36.) Asthe Court of Appeal summarizedit, the District Attorney argued that Labor Code section 6315, subdivision (g)’s “requirementthat cases be referred to [prosecutors] for ‘appropriate action’ confers upon prosecutors the discretion to file whatever actions, civil or criminal, that they deem appropriate.” (/d. at p. 44.) The Court of Appeal first compared the criminal procedures set forth in Labor Codesection 6315 with the civil procedures set forth in Labor Code section 6317. (Solus I, supra, 224 Cal.App.4th at pp. 39-40.) The Court of Appeal noted that sections 6428 and 6429are part of the California workplace safety plan, and specifically authorized Cal/OSHA- notthe district attorneys-to seek civil penalties for alleged workplace safety violations. (/d. at pp. 39-40, 43-44) Accordingly, the Court of Appealrejected the District Attorney’s argument that Labor Code section 6315, subdivision (g) statutorily authorized or otherwise implied standing for the district attorneys to bring civil actions to seek penalties for alleged workplace safety violations. (Jd. at p. 44.) 20 In this appeal of Solus JIT, the District Attorney argues that Labor Codesection 6315, along with section 6423 and 6425, confirm that the California state plan “contemplated supplemental action by prosecutors”to enhance the enforcement of workplace safety standards. (Op. Br. at p. 37.) Labor Codesections 6423 and 6425, however, set forth the potential criminal penalties for workplace safety violations; they do not authorize district attorneys to seek civil penalties for workplace safety violations. Nor does Labor Code section 6315. Instead, Labor Code section 6315 merely directs Cal/OSHA’s criminalinvestigation unit to “notify the appropriate prosecuting authority” of findings that might support a criminal prosecution: In any case where [Cal/OSHA’s Bureau ofInvestigations] is required to conduct an investigation, and in which thereis a serious injury or death, the results of the investigation shall be referred in a timely mannerby the bureau to the appropriate prosecuting authority having jurisdiction for appropriate action, unless the bureau determinesthat there is legally insufficient evidence of a violation of the law. Ifthe bureau determinesthat there is legally insufficient evidence of a violation of the law, the bureau shall notify the appropriate prosecuting authority, if the prosecuting authority requests notice. (Lab. Code, § 6315, subd. (g).) Because the BureauofInvestigations conducts criminal investigations,its referrals to “appropriate prosecuting authorities” must necessarily be for criminal prosecution: The central function of the Bureau of Investigations, within the Division of Occupational Safety and Health, is to conduct criminal investigations. ... The Bureau of Investigationsis 21 the only entity within the Division which is empowered to conduct criminal investigations and to refer the results of such investigations when appropriate to a city attorney or district attorney for necessary action. The Bureau must analyze the circumstances surrounding the violation to determine whetherthe conductis sufficiently aggravated to fall within the scope of Labor Code sections 6423, 6425 and otherpenal statutes. (Cal. Code Regs., tit. 8, § 344.51, italics added.) Thus, any referral under Labor Codesection 6315 would necessarily be for criminal prosecution.” This analysis is further confirmed by section 6317 of the Labor Code, which providesthat “[t]he division [Cal/OSHA] may imposea civil penalty against an employeras specified in Chapter 4 (commencing with Section 6423) ofthis part.” The code sections atissue in the first two causes ofaction set forth in the Complaint-Labor Code sections 6428 and 6429-are part of chapter 4 ofpart 1 of the code. Consequently, as the Court of Appeal concludedin the prior appeal, the Legislature authorized Cal/OSHAandonly Cal/OSHA to imposecivil penalties under those provisions. (Solus I, supra, 224 Cal.App.4th at pp. 43-44, review den.) Applyingthe principle of expressio unius est exclusio alterius-that is, the expression of onething in a statute ordinarily implies the exclusion of others-the courts presumethat, when the Legislature has stated one thing in a statute, it has excludedall other things. (See, e.g., Rojasv. > Cal/OSHA’s compliance personnel are charged with seeking civil enforcement remedies. (Cal. Code Regs., tit. 8, § 344.50.) 22 Superior Court (2004) 33 Cal.4th 407, 424.) The Legislature and thestate plan expressly authorize only Cal/OSHAto assesscivil penalties. Consistent with the principle of expressio unius, this Court should conclude that the Legislature did not authorize the district attorneys to bring such actions. Nothing about the brief reference in Labor Code section 6315, subdivision (g) giving district attorneys the powerto take “appropriate action” uponreceipt of a criminal referral changesthis analysis. With nowhereelse to turn, the District Attorney essentially asserts that his claims under the UCL and FAL should be permitted because they have been allowed in the past: “The UCL and FAL were both enacted before the Act and have been used for decades as a meansto assess additional penalties against employers that violate workplace safety (or any) laws andgain unfair competitive advantagesas a result.” (Op.Br. at p. 38.) But as the Court of Appeal concluded, such “nonspecific” assertions that district attorneys have alleged UCL claims for workplace violations-evenifproperly considered-does not answer whether such claims are preempted by OSHA.(Solus III, supra, 229 Cal.App.4th at p. 1303.) Indeed,“the mere fact that sometrial courts have allowed such claims to proceed without objection does nothingto establish those claims were pursued appropriately.” (Solus I, supra, 224 Cal.App.4th at p. 45.) In sum,there is no dispute that district attorneys generally have standingto bring civil actions under the UCL and FAL,butit does not 23 follow that district attorneys are authorized to use the UCL and FALto enforce work place safety standards. The approved Californiastate plan does not include the UCL and FAL,and thosestatutes certainly were not incorporated into the California state plan by the criminal referral provision contained in Labor Codesection 6315, subdivision (g). Accordingly, federal law preempts the use of the UCL and FALtoassesscivil penalties on top of those Cal/OSHA is authorized to assess against employers that violate workplace safety laws. 4. Public Policy Arguments Must Be Weighed by the U.S. Secretary of Labor-Notthe Courts. Asdiscussed above,the District Attorney allocates a significant portionofhis brief to recite a history of workplace safety regulation in our state and advocating that “supplementary actions by prosecutors” under the UCLand FALwill improve workplace safety. Notably, the District Attorney’s ownhistorical recitation acknowledgesthat the Legislature has increased the civil fines that Cal/OSHA(notthe district attorneys) can seek based on perceptionsthat increased enforcement of workplace safety standards were needed. (Op.Br.at p. 19 [“‘Since 1973, the penalty statutes in the State Plan have been amendedto, amongother things, increase the 24 permissible penalty amounts and encourage greater enforcement efforts.”].)° Here, the District Attorney seeks to bypass Legislative amendment of the California state workplace safety plan to create new and potentially larger fines under the UCL and FAL. As the Court of Appeals concluded, this argument should be rejected for two reasons: First, while it may betrue that the penalty statutes and regulations underlying these UCL claimsare included in the approvedstate plan, the district attorney is not seeking to directly enforce those approved penalties and regulations. Instead, he is seeking to enforce separate penalties under the UCL which have not been approvedfor application in the otherwise preempted area of workplace safety regulation. Second, the standard for assessing whether reliance on the UCLas a tool of enforcing workplace safety lawsis preempted is not whether we believe it appears “consistent with the goals” of the OSH Act to do so. It is the Secretary, not this court, which retains the discretion to determine whether changesin the state’s already approved enforcement plan are appropriate. Stated simply, avoidance of federal preemption is dependent upon the Secretary’s approval, not ours. (Solus III, supra, 229 Cal.App.4th at p. 1307, paragraph break added.) Just as in the case of Proposition 65 when the U.S. Secretary of Laborlimited its application to out-of-state manufacturers after receiving public comments, ® It is also notable that the District Attorney’s lone “authority” favoring use of the UCL to enhance workplacesafety is a “note” from 1968 that was written by a second-year law student. (Op. Br. at p. 11.) 25 the same process must occurbefore district attorneys may use the UCL or FALto assesscivil penalties for workplace safety violations. Again,this is not even a debate for this Court, but there are a number of public policy reasonsthat the California Legislature and U.S. Secretary of Labor would likely consider as weighing against such “supplemental actions by prosecutors”(as the District Attorney calls them). The U.S. Supreme Court has explained that Congress enacted OSHA “to promote occupational safety and health while at the same time avoiding duplicative, and possibly counterproductive, regulation.” (Gade, supra, 505 U.S. atp. 102,italics added.) Further, OSHA “established a system of uniform federal occupational health and safety standards, but gave States the option of pre-empting federal regulations by developing their own occupational safety and health programs.” (Jbid., italics added.) This Court, too, has noted that Congress adopted the OSHA “to address the problem of uneven and inadequatestate protection of employee health and safety.” (United Air Lines, Inc. v. Occupational Safety & Health Appeals Bd. (1982) 32 Cal.3d 762, 772, italics added.) Underthe District Attorney’s proposed approach, both Cal/OSHA and a district attorney could file separate actions arising from the same incident. That would obviously create “duplicative regulation.” Further, that duplicative regulation would likely be highly counterproductive. The same appellate court might hear appeals from those separate actionsand, 26 applying the highly deferential “substantial evidence” standard, be obligated to affirm two contrary results. No appellate procedures or principles would allow the appellate court to harmonize such conflicting results.’ And such an absurdity would plague not only the employer who wasa party to the actions butalsoall other similarly situated employersin the state, who could well find themselves trying to determine how to follow two contrary pronouncements from the very same court. Finally, it should be noted that Cal/OSHAissued penalties against Solus of $98,800. (A82.) By contrast, the District Attorney is seeking that penalties of $2,500 per violation be counted on a per-day and per-employee basis. If permitted bystatute, that method of counting could expose the employer to a judgment of many millions of dollars. As the Court of 7 The Division of Labor Standards Enforcement (DLSE)of the Department of Industrial Relations has also recognized thepotential for “chaos” that could result from dual administrative and judicial actions: “A claim filed with the Labor Commissioner may besent to a hearing;the result of that hearing . . . will, unless appealed by either party, become a judgment. Thus,it would be possible for the parties to have two conflicting judgments or two concurrent judgments covering the sameissue or facts. Obviously, this will lead to chaos.” (Cal. Dept. of Industrial Relations, Division of Labor Standards Enforcement Chief Counsel H. Thomas Caddell, Jr., opinion letter, Multiplicity of Actions (Apr. 19, 1995), p. 1, available at http://www.dir.ca.gov/dlse/opinions/1995-04-19.pdf; see also Beil v. Farmers Ins. Exchange (2001) 87 Cal-App.4th 805, 815 [DLSE advice letters “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance” [Citation.]’ [Citation.]’”) 27 Appealnoted, the U.S. Secretary of Labor-not the courts-must evaluate the public policy implications of such a change: It is not our place to assess whether such an extraordinary jumpin the potential civil penalty an employer such as Solus might incur for workplace safety violations through application of the UCL is a good idea. For our purposes,it is enough to note that it is an extraordinary jump. And because it is, we conclude it will have to be the Secretary, and notthis court, who assessesits merits. (Solus IT, supra, 229 Cal.App.4th at p. 1308.) V. CONCLUSION Just as the State of California was required to submit Proposition 65 to the U.S. Secretary of Labor to avoid federal preemption,the State is required to submit the UCL and FALto the U.S. Secretary of Labor to avoid federal preemption. Although the State hasthis option, it has chosen not to exercise it. As the Court of Appeal noted, it is not the judiciary’s role to decide whether the UCL and FALshould be includein the State’s workplace safety plan. Thatis the role of the California Legislature, subject to approval by the U.S. Secretary of Labor. Accordingly, the Court 28 of Appeal properly held that the District Attorney’s claims are preempted by OSHA. Dated: March 16, 2015 29 Respectfully submitted, JONES DAY ate- (Frederick D. Friedman Counselfor Petitioners SOLUS INDUSTRIAL INNOVATIONS,LLC,et al. CERTIFICATE OF WORD COUNT Counsel of Record hereby certifies, pursuant to Rule 8.504(d) of the California Rules of Court, that the foregoing AnswerBrief on the Merits wasproduced using 13-point type, including footnotes, and contains 6,727 words. Counselrelies on the word count of the computer program used to prepare this brief. Dated: March 16, 2015 Respectfully submitted, JONES DAY By: MfLAL /Vr Frédéric kFriedman Counselfor Respondents SOLUS INDUSTRIAL INNOVATIONS,LLC,etal. LAI-383235320 30 PROOF OF SERVICE BY MAIL Iam a citizen of the United States and employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within- entitled action. My business address is 555 South FlowerStreet, Fiftieth Floor, Los Angeles, California 90071.2300. I am readily familiar with this firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service. On March 16, 2015, I placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): ANSWER BRIEF ON THE MERITS, addressed as follows: SEE ATTACHED SERVICE LIST Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service onthis date. I declare under penalty of perjury under the laws ofthe State of California that the aboveis true andcorrect. Executed on March 16, 2015, at Los Angeles, California. fuer Bator) Susan C. Ballard LAI-318762Iv1 Kelly A. Roosevelt, Esq. Deputy District Attorney P.O. Box 808 Santa Ana, CA 92702 Appellate Coordinator Office of the Attorney General 300 South Spring Street Los Angeles, CA 90013-1230 Clerk of the Court Court of Appeal 4th District, Division 3 601 West Santa Ana Boulevard Santa Ana, California 92701 Hon. Kim G. Dunning c/o Clerk of the Court The Superior Court of Orange 751 West Santa Ana Blvd. Department CX104 Santa Ana, CA 92701 LAI-3187621v1 SERVICE LIST Counsel for Real Parties in Interest, People ofthe State of California