SOLUS INDUSTRIAL INNOVATIONS v. S.C.

Petitioners’ Response to Amicus Curiae Brief

Cal.August 25, 2015

SUPREME CGURT COPY SueReWecouRT No. 8222314 ° AUG 25 2015 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA Frank A. McGuire Clerk Deputy SOLUS INDUSTRIAL INNOVATIONS, LLC; EMERSON POWER CRO TRANSMISSION CORPORATION;and EMERSON ELECTRIC CoO., 8.25(b) 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 SuperiorCourt, County of Orange Civil Case No. 30-2012-00581868-CU-MC-CXC The Honorable Kim G. Dunning, Department CX104 COMBINED RESPONSE TO BRIEFS OF AMICI CURIAE CALIFORNIA DEPARTMENTOF INDUSTRIAL RELATIONS AND DIVISION OF OCCUPATIONAL SAFETY AND HEALTH AND CALIFORNIA DISTRICT ATTORNEYSASSOCIATION Brian A. Sun (SBN 89410) Frederick D. Friedman (SBN 73620)* JONES DAY 555 South FlowerStreet 50th Floor Los Angeles, CA 90071-2300 Telephone: (213) 498-3939 Facsimile: (213) 243-2539 ffriedman@JonesDay.com Counselfor Petitioners SOLUS INDUSTRIAL INNOVATIONS,LLC,etal. No. 8222314 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SOLUS INDUSTRIAL INNOVATIONS, LLC; EMERSON POWER TRANSMISSION CORPORATION; and EMERSON ELECTRIC CO., 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 COMBINED RESPONSE TO BRIEFS OF AMICI CURIAE CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS AND DIVISION OF OCCUPATIONAL SAFETY AND HEALTH AND CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION Brian A. Sun (SBN 89410) Frederick D. Friedman (SBN 73620)* JONES DAY 555 South Flower Street 50th Floor Los Angeles, CA 90071-2300 Telephone: (213) 498-3939 Facsimile: (213) 243-2539 ffriedman@JonesDay.com Counselfor Petitioners SOLUS INDUSTRIAL INNOVATIONS,LLC,etal. Il. i. IV. TABLE OF CONTENTS Page INTRODUCTION......... cc cecceccetcecesssceeesessseneceesessaeensnseseessesspenstaneenees I THE FEDERAL OSH ACT PREEMPTS ALL STATE LAWS REGULATING WORKPLACE SAFETY UNLESS THOSE LAWS, INCLUDING THE METHOD OF ENFORCEMENT, HAVE BEEN INCORPORATEDIN THE APPROVED STATE PLAN 0... eeccececescceeeeeneecesneeeenerseeaceneeeenneceneeseseesaeesesesssusoueasssesersuecsseeey 2 CAL/OSHA’S SELF-CONTRADICTORY BRIEF DOES NOT PROVIDE ANY COGENT REASON FOR REVERSING THE DECISION OF THE COURTOF APPEAL wu...ccc seceseseceeeees 6 A. As Applied in This Matter, the UCL and FAL Are Not Being Used as Lawsof General Applicability «0.0000... 7 B. The OSH Act’s Savings Clause Has No Effect Here Because the UCL and FAL Are Enforcing Only Worker Safety Standards, Which Must Be Enforced in Accordance with California’s Worker Safety Program........ 13 C. The Prosecutor’s Use of the UCL and FAL Has Nothing to Do with the State’s Workers Compensation SYSCEM .0....cceesseececessceseessesseessceseseeesaeeeesesnseesensueoeseeeesesaeeegs 17 D. The California State Plan Does Not Provide for Enforcing California’s Worker Safety Standards Through UCL Actions... cescesesseeseessseeesseseseseneeeeeeesenenes 19 E. Cal/OSHA Has Askedthe Court to Take Judicial Notice of a Document That Confirms Solus’s Position in This Matter ...........ccccccccccecceccececccccssececseceseeesseceensccesseceeseees 22 THE AMICUS BRIEF OF THE CALIFORNIA DISTRICT ATTORNEYS’ ASSOCIATION DOES NOT RAISE ANY ADDITIONAL ARGUMENTS........eeceeecceeseesseeeeseeneecsseeveneeseaneeaes 23 A. The OSH ActIs Not a “Law of General Applicability”........ 23 B. The OSH Act’s Savings Clause Does Not Apply................. 25 TABLE OF CONTENTS (continued) Page C. The OSH Act Preempts Local Prosecutors’ Use of the UCLand the FAL Because They Are Enforcing Worker Safety Standards in a MannerInconsistent With the Act .......eecccessesceeseeeesseeeesesseesseeeasessneeeesseeessneeeenseessns 26 D. Recognition of Federal Preemption in This Instance Would Have No Effect on State Laws That Truly Are “Generally Applicable” 0.0.0... cee eeceseeceeeeseeeeeserereneeeeessensaes 27 V. CONCLUSIONweeseccssssesssessssssssssstsssssetncosssstsetestttastenasesvsesscee 31 -ii- TABLE OF AUTHORITIES Page CASES California Lab. Federation v. Cal/OSHA (1990) 221 Cal.App.3d 1547occeceecsceeceeeeeceeeeseteeeceneeseneeseesaeeetes 26 Gade v. National Solid Wastes Management Association (1992) 505 U.S. 88 ooo. ececcscsseecsssesssscceeesseseeseessesecessseesesseeeceeseeereeaeenspassim Industrial Truck Assn. v Henry (9th Cir. 1997) 125 F.3d 1305 ou.eeeececesesessseceeeseeeseseceeseneeseeesseeseeenees 27 Kodadek v. MTVNetworks, Inc. (9th Cir. 1998) 152 F.3d 1209.eeceececeeeecneeeesereeeetseeseeessetsesaees 9 People ex rel. Dept. ofTransportation v. Naegele Outdoor Advertising Co. ofCal. (1985) 38 Cal.3d 509.0... cecesececstesceecssseeeecseeeeeeseesaeeseeseeeeeneeenessaesseens 9 People v. Stanley (1995) 10 Cal.4th 764 ooeccescseseeeesaereeceesseetenesaneseeseaentueeseeseeeaseas 19 People v. Superior Court (Solus 1) (2014) 224 Cal.App.4th 33, review denied...eeeeeeeeneeeteeeereteeteeens 15, 18, 20 Rogers v. NationsCredit Financial Services Corp. (Bankr. N.D.Cal. 1999) 233 B.R. 98.0... escseseseeereeteesseeeaeeseeeenentens 10 Rose v. Bank ofAmerica, N.A. (2013) 57 Cal.4th 390 oeescceseseceessceseceesseeseeescesserssasesaeeeseseneeseens 8,9 Vega v. JPMorgan Chase Bank, N.A. (E.D.Cal. 2009) 654 F.Supp.2d 1104...essessecseeseeeseeeeseeeaseneses 10 Washington Mutual Bank, FA v. Superior Court (2002) 95 Cal.App.4th 606.000... cc ceeecesesceseeseesecseeeeseeeseeeeeeesneetsessssarees 9 TABLE OF AUTHORITIES (continued) Page STATUTES 29 U.S.C. § 653(D(A) oer eeceetseteesteeeseesecesectesteceersassevseeseenaeenanerseseesetseees 13, 14, 25 29 ULS.C. § 667(b) 0. cece eeessscsstecssessscesessseeseesecsesesseseecsesesseseeesesseaetetseseeenes 3 Bus. & Prof. Code, § 17200 (UCL) 0... eeceeeecceesseeeeeesceeeeeeeeeseaeenesseeteenespassim Bus. & Prof. Code, § 17206... ceseesescseseseseseseescssssessesseseeseerseeeesaeneenes 11,12 Bus. & Prof. Code, § 17208...ccc cecccsessssseeeeeessersesesseesscescesesessenesesseeats 12 Bus. & Prof. Code, § 17500 (FAL) .......ceeecceeeeeaceeseeteeesceeesecteneseneseeeenarseaes passim Lab. Code, § 6315, subd. (Q) ..cccceeecsesecceseneeceeeeseeeseeeeeeaeecteeteeseeeseseaeeseess 15,18 Lab. Code, § 6317........ccssccssssscsesssneecesseeesenecescesseesaceeaeesceserseesesanateeaeeeaseaeens 4,12 Lab. Code, § 6319... ccccsccssscssecsseccesesseeesesaeecseestsneesaeecesaeereenegeaseeseesneeeees 1] Lab. Code, § 6427 .......cscecccsssecsesecseeeneeeeeeacenseseeseesessassecseosseasenaesesesnesaserseass 11 Lab. Code, § 6428.0... ceccsssesseceseeseseesseeseecsesseseecsassecseceesseesnssaeasauecesaeneenes 11 Lab. Code, § 6429.0...eeesecesessessessecesseveeessesnsescsesssseeseeraesanasseeenssssssanaesees 12 Lab. Code, § 6430, subd. (8).......ceeceeeeeeeessecesecceeceeseerseteseessseesesenaeerseeeseseees 12 OTHER AUTHORITIES 29 CLELR. § 191Oeecceceescsesceseteesseeeseeceecesesessassessesssessssseseeseeseeesaeeeeseeaeeas 27 29 CLF.R. § 1910147oeeecseeseereneeesecseeeseeeseesseseeeessessseeesereesersesateaees 27 29 C.F.R. § 1952, subpart Koocceeeceeeseneeeeesseseenessseesscseaseneseessesasaees 3,4 29 C.F.R. § 1952.170(a) voceccesscececescesecseceesserseessesseneseesesseseeseeeererseseeseees 4,11, 21 62 Fed.Reg. 31159 (June 6, 1997)eeeceseesseeesseesteecessneeeteerenseseeeesnees 26 -ii- I. INTRODUCTION The California Departmentof Industrial Relations and the California Division of Occupational Safety and Health Act (collectively, “Cal/OSHA”)and the California District Attorneys Association (“CDAA”) have submitted separate amicuscuriae briefs. Respondents Solus Industrial Innovations, LLC, Emerson Power Transmission Corporation, and Emerson Electric Co. (“Solus”) hereby respond to both briefs. Neither brief provides any reason for the Court to reverse the decision of the Court of Appeal. Indeed, both briefs confirm three fundamental points supporting that court’s decision: 1. Both briefs confirm that the Orange County District Attorney (as well as other district attorneys) is attempting to use Business and Professions Codesections 17200 and 17500 as a method of enforcing California’s worker safety program. 2. Both briefs confirm that enforcement of worker safety standards by original civil actions through either of these provisions is not part of California’s state worker safety plan. 3. Both briefs confirm that California’s worker safety plan does not provide for enforcement ofworker safety standards through original civil actionsfiled in the superior courts. Given these three points, the conclusion necessarily follows that the federal Occupational Safety and Health Act (the “OSH Act’) preempts Business and Professions Code sections 17200 and 17500 as they are being used by the Orange County District Attorney in this matter. The Court should therefore affirm the decision of the Court of Appeal. Il. THE FEDERAL OSH ACT PREEMPTS ALL STATE LAWS REGULATING WORKPLACE SAFETY UNLESS THOSE LAWS, INCLUDING THE METHOD OF ENFORCEMENT, HAVE BEEN INCORPORATED IN THE APPROVED STATE PLAN In considering the arguments madein the amicusbriefs at issue,it is helpful to keep in mind the simple analysis that leads to the conclusion that the challenged statutes are preempted to the extent that they are being used to enforce worker safety regulations. In Gade v. National Solid Wastes Management Association (1992) 505 U.S. 88, 102 (Gade), the U.S. Supreme Court held that Congress enacted the OSH Act“to promote occupational safety and health while at the same time avoiding duplicative, and possibly counterproductive, regulation.” To achieve these goals, the OSH Act “established a system of uniform federal occupational health and safety standards, but gave States the option ofpre-empting federal regulations by developing their own occupational safety and health programs.” (Jbid.) The OSH Act, 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 assume responsibility for development and enforcement therein of occupational safety and health standardsrelating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 655 ofthis title shall submit a State plan for the development of such standards andtheir enforcement. (29 U.S.C. § 667(b).) Accordingly, the U.S. Supreme Court concluded that “the OSH Actprecludes 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 U.S.at p. 102.) The Supreme Court also noted that the scope of this preemption includes any state law that “‘interferes with the methods by which the federal statute was designedto reach th[at] goal.’ [Citation.]” (Gade, supra, 505 U.S. at p. 103.) Accordingly, “States are not permitted to assumean enforcement role without the Secretary’s approval ....” (Ud. at p. 101.) California submitted its workplace safety plan to the U.S. Secretary of Labor, who approved that plan. (29 C.F.R. § 1952.170 et seq. [subpart K].) The California workplace safety plan does not include enforcement by local prosecutors throughcivil penalties actions brought undereither Business and Professions Code section 17200 (the “Unfair Competition Law”or “UCL”) or Business and Professions Code section 17500 (the “False Advertising Law”or “FAL”). (See 29 C.F.R. § 1952.170(a); see generally 29 C.F.R. § 1952, subpart K.) Instead, California’s worker safety plan calls for enforcement by Cal/OSHA,with administrative adjudications entrusted to the California Occupational Safety and Health Appeals Board: The State’s program will be enforced by the Division of Industrial Safety of the Department of 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).) Cal/OSHA’s own amicusbriefmakes this very point. In describing its role in Part II of its brief, Cal/OSHA states that its Chiefis “the officer responsible for enforcement of California occupational safety and health lawsand regulations at workplaces throughoutthe State.”” (Cal/OSHA Amicus Curiae Brief (“Cal/OSHA Am.Br.”) at pp. 1-2.) This is exactly the role Cal/OSHAhasbeen assigned by statute. No enforcement role was assignedto local prosecutors. In addition, the California Legislature specifically provided that only Cal/OSHAmayseekcivil penalties for violation of the regulationsat issue: “The division [i.e., Cal/OSHA] may imposea civil penalty against an employer as specified in Chapter 4 (commencing with Section 6423)ofthis part.” (Lab. Code, § 6317.) Nothing in the statutory scheme-orin the state plan- permits local prosecutors to impose such civil penalties. Nevertheless, the Orange County District Attorney is attempting to use the UCL and FAL to enforce worker safety standards. The complaint alleges as a matter of fact only violations of various sections of the Labor Code andthe regulations thereunder. (A14-17.) It contains no factual allegations of any separate act that might constitute unfair competition or false advertising. The District Attorney is simply attempting to enforce the Labor Code sections and regulations through UCL and FAL claimsfiled as original actions in the superior court. Indeed, the Occupational Safety and Health Administration (“OSHA”) makesit crystal clear on its website that penalties as well as substantive plan provisions are subject to the agency’s approval. The OSHA website ( [as of Aug. 20, 2015]) has a page of Frequently Asked Questionsthat includes the question “Can State Plans Impose Higher Fines or Stricter Penalties than OSHA?” In response to that question, OSHA states that such higherfines andstricter penalties are permitted but then adds:“All State Plan policies and proceduresrelated to penalties must be submitted and reviewed by OSHA.” (Emphasis added.) In other words, OSHA expects that “policies and procedures related to penalties” must be submitted for its approval. Original civil penalties actions by local prosecutors under the UCL and the FAL areclearly “policies and proceduresrelated to penalties.” Indeed, such actions have the potential to makesignificant, if not radical, changes to the enforcement schemein the approved plan. Yet California has concededly not submitted any proposal for adding such civil penalties actions to the state enforcement program. Because California’s worker safety plan does not provide for enforcement through original civil actions brought by the district attorneys, such actions under the UCL and FAL are preempted by the OSH Act. Il. CAL/OSHA’S SELF-CONTRADICTORY BRIEF DOES NOT PROVIDE ANY COGENT REASON FOR REVERSING THE DECISION OF THE COURT OF APPEAL In its amicus brief, Cal/OSHAargues variously that the federal OSH Act does not preempt the Orange County District Attorney’s use of the UCL and FALin this instance because (a) the UCL!is not being used to enforce an occupational health or safety standard; (b) the UCL is a law of general application; (c) the UCLfalls under the savings clause of the OSH Act; (d) the District Attorney is using the UCLas part of California’s workers’ compensation system; (e) the UCL is already part of the California worker safety plan approved by the U.S. Secretary of Labor; and/or (f) the UCL is already part of the California plan and may be enforced pending approval by the Secretary of Labor. ' Hereinafter, references to the UCL alsorefer to the FAL. To a great extent, these arguments are mutually self-contradictory. If actions by local prosecutors brought under the UCL are part of California’s worker safety plan (whether approved ornot), then arguments (a) through (d) are entirely irrelevant. If such actions are notpart of California’s worker safety plan, then arguments (e) and(f) are meritless. In fact, civil penalties actions under the UCLare notpart of California’s worker safety plan. But such an action is being usedin this case precisely to enforce worker safety standards. It is therefore preempted by the federal OSH Act. A. As Applied in This Matter, the UCL and FAL Are Not Being Used as Lawsof General Applicability Cal/OSHAfirst argues that the UCL escapes preemption underthe OSH Actas a “law of general applicability.” (Cal/OSHA Am.Br. at pp. 8- 14.) That argumentis without merit. The District Attorney is using the UCLto enforce worker safety standards. This runs afoul of the preemptive effect of the OSH Act. First, as a matter of fact there can be no doubtthat the Orange County District Attorney is seeking to use the UCL as a meansof enforcing California’s worker safety standards. The complaintin this matter rests entirely on factual allegations about worker safety standards- not about unfair competition or false advertising. (See A14-17.) The very fact that Cal/OSHAhas submitted an amicusbrief is an acknowledgment of the obvious-this case is about enforcing workplace safety standards and not about preventing unfair competition or false advertising. (See Cal/OSHA Am.Br.at 2 [“The question of whether and how the OSH Act preempts California laws used in the enforcement ofoccupationalsafety andhealth standardsis of great and direct importance to both DIR and the people of the State of California,” italics added].) Andthat is necessarily the case, as the UCL doesnotitself set any standards for conduct. Instead, as this Court has previously explained, the UCL “borrowsviolations of other laws and treats them as unlawful practices that the [UCL] makes independently actionable.” (Rose v. Bank of America, N.A. (2013) 57 Cal.4th 390, 396 (Rose), internal quotation marks and citations omitted.) Cal/OSHA makes muchofthis Court’s statement in Rose that “a UCLaction doesnot ‘enforce’ the law on which a claim of unlawful business practice is based.” (Rose, supra, 57 Cal.4th at p. 396.) But in Rose the defendantspecifically did not raise a preemption argument. (/d. at p. 395 [“The Bank respondsthat considerations of preemption are irrelevant, and instead framesthe issue as one of congressional intent to disallow private enforcementof {the federal Truth in Savings Act].”].) Accordingly, Rose does not support the argumentthat the UCL permits a Ee A I S A b e plaintiff to avoid federal preemption by simply redesignating an otherwise preempted claim as a UCL claim. Indeed, the UCL cannotso easily trump the Supremacy Clause of the U.S. Constitution. If the UCL had that power, the doctrine of federal preemption would effectively cease to exist. For example, the federal courts have exclusive jurisdiction over copyright and patent claims. But, on Cal/OSHA’stheory,a plaintiff could prosecute a patent or copyright claim in California state court simply by designating it as a claim underthe OeUCL andthen arguingthat the lawsuit is not “‘enforc[in]g’ the law on which [the UCLclaim] is based.” (See Rose, supra, 57 Cal.4th at p. 396.) Nothing suggests that the UCL provides such a potent get-out-of- preemption-free card. The courts routinely hold that a plaintiff cannot circumvent preemption by recasting a preempted claim as a claim under the UCL. Thus, this Court held that the federal Highway Beautification Act preempts the UCL. (People ex rel. Dept. ofTransportation v. Naegele Outdoor Advertising Co. ofCal. (1985) 38 Cal.3d 509, 523.) The Court of Appeal held that a federal regulation adopted under the Home Owners’ Loan Act preempteda state law claim under the UCL. (Washington Mutual Bank, FA v. Superior Court (2002) 95 Cal.App.4th 606, 612, 621.) The Ninth Circuit held that the Copyright Act completely preempts any attempt to use the UCLas a surrogate for a copyright claim. (Kodadek v. MTVNetworks, Inc. (9th Cir. 1998) 152 F.3d 1209, 1213.) Similarly, a U.S. district court held that federal bankruptcy law preempts a UCL action claiming malicious prosecution in bankruptcy. (Rogers v. NationsCredit Financial Services Corp. (Bankr. N.D.Cal. 1999) 233 B.R. 98, 110.) Another U.S. district court held in Vega v. JPMorgan Chase Bank, N.A. (E.D.Cal. 2009) 654 F.Supp.2d 1104, 1117-1118, that a plaintiff could not sue a national bank under the UCL for alleged violations of federal laws such as the Truth in 68s,Lending Act. That court explained that a plaintiff may not “plead around an absolute barto relief simply by recasting the cause ofaction as one for unfair competition.’” (/d. at p. 1118, quoting Chabner v. United ofOmaha Life Ins. Co. (9th Cir. 2000) 225 F.3d 1042, 1048.) Cal/OSHAproclaimsthat the UCL “is a consumerprotection law that neither contains any mention of workplace safety noris directed at workplace safety.” (Cal/OSHA Am.Br. at p. 12.) Similarly, the UCL has no mention of copyrights, patents, national banking or a range of other topics where state claims are preempted becauseofthe effect of a federal statute. But this does not mean that a plaintiff can sue in state court for copyright infringement under the guise of a UCL claim and then argue that the UCLis a “law of general applicability” not subject to preemption (Cal/OSHA Am.Br.at p. 11-12) or “an independentcause of action [and] not an enforcement mechanism”(id. at p. 10) for copyright law. The courts have uniformly seen through this smokescreen. The approachto the UCL taken bythe cases cited above adheres to the U.S. Supreme Court’s teaching in Gadethat, in conducting a -10- preemption analysis, a court must consider the “practical impact”of a state law: “[W]hen considering the purpose of a challengedstatute, this Court is not bound by ‘[t]he name, description or characterization given it by the legislature or the courts of the State,’ but will determine for itself the practical impactofthe law.” (Gade, supra, 505 U.S. at p. 106, quoting Hughes v. Oklahoma (1979) 441 U.S. 322, 336; see also Gade, at p. 105 [“In assessing the impact of a state law on the federal scheme, we have refused to rely solely on the legislature’s professed purpose and have lookedas wellto the effects of the law.”’].) Here, the complaint rests precisely on allegations of violations of California’s approved workersafety plan. Permitting local prosecutors to bring UCL or FAL actions against employers where the gravamenofthe allegations is the violation of workplace safety regulations would have the “practical impact” of enforcing those regulations. But enforcementin this manner would disrupt the enforcement program established under California’s approved state plan. The approvedplan calls for enforcement through agency action-not throughcivil actions in the superior courts. (Compare 29 C.F.R. § 1952.170(a) with Bus. & Prof. Code, § 17206, subd. (a).) The approvedplan calls for designated penalties-penalties that UCL actions would far exceed. (Compare Lab. Code, §§ 6319, 6427, 6428, -ll- 6429, 6430, subd.(a) [identifying potential penalties through administrative action] with Bus. & Prof. Code, § 17206 [providing for penalties up to $2,500 per day].) The approved plan calls for administrative citations to be issued within six months months-and not merely commenced within the four-yearlimitations period applicable to UCL claims. (Compare Lab. Code, § 6317 [period for issuing administrative citations] with Bus. & Prof. Code, § 17208 [UCLlimitations period].) Indeed, as we have seen (Part II above), OSHA itself states on its official website that “[a]ll State Plan policies and proceduresrelated to penalties must be submitted”to that agency for its approval. (Emphasis added.) Yet, as all parties acknowledge,the policy of permitting local prosecutors to bring UCL and FAL actions as an adjunct to Cal/OSHA’s enforcement powers has never been submitted to OSHAfor incorporation in the state plan, let alone received agency approval. In short, in this matter the “practical impact” ofpermitting prosecutors to bring UCL and FAL actions would be to enforce California’s worker safety laws in a mannercontrary to that set out in its worker safety plan. Accordingly, this application of the UCL and FAL is preempted by the OSH Act. -12- B. The OSH Act’s Savings Clause Has No Effect Here Because the UCL and FAL Are Enforcing Only Worker Safety Standards, Which Must Be Enforced in Accordance with California’s Worker Safety Program Cal/OSHAargues further that the OSH Act does not preempt the UCLor the FAL becausethosestatutes fall within the OSH Act’s savings clause, 29 U.S.C. § 653(b)(4). (Cal/OSHA Am.Br. at pp. 14-20.) That argumentfails for precisely the same reasonthat the “law of general applicability” argumentfails: when judged by “practical impact,” as the law requires, the policy of permitting local prosecutors to bring UCL and FAL actions does not fall within the scope ofthe savings clause, but instead functions to enforce California’s worker safety program in a manner inconsistent with the California plan. The OSH Act’s savings clause provides as follows: Nothing in this chapter shall be construed to supersedeor in any manneraffect any workmen’s compensation law orto enlarge or diminish or affect in any other mannerthe commonlaw orstatutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employeesarising out of, or in the course of, employment. (29 ULS.C. § 653(b)(4).) To begin with, Cal/OSHA’s suggestion that UCL and FAL actions are covered by the savings clause is undercut by Cal/OSHA’s own characterization of the UCL and FAL in its amicusbrief. The savings -13- clause, by its terms, saves “statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employeesarising out of, or in the course of, employment.” (29 U.S.C. § 653(b)(4).) But, according to Cal/OSHA,the UCL “is a consumerprotection law that neither contains any mention of workplace safety nor is directed at workplace safety.” (Cal/OSHA Am.Br. at p. 12.) If that is the case, the UCLis not a statute that says anything about the rights, duties or liabilities of employers and employees regarding workplace injuries, diseases or death. Therefore, if Cal/OSHA meanswhatit says about the UCL, the UCL could not possibly be covered by the savings clause. Beyondthis,it is also clear that the savings clause does not immediately immunize any state law. Instead, the Court must conduct a preemption analysis-and in conducting that analysis, the Court must identify the “practical impact” of that law. (See Gade, supra, 505 U.S.at p. 106.) As discussed above,in this case a civil penalties action brought by a local prosecutor under the UCL and the FALis being used solely to enforce worker safety standards. The complaint identifies only violations ofworker safety standards and nowhereidentifies any other wrongful conduct. Cal/OSHAarguesthat criminal prosecutions andprivate tort actions havehistorically been seen as covered by the savings clause. (Cal/OSHA -14- Am.Br. at pp. 14-15.) Of course, the action involved here is neither a criminal prosecution nora private tort action, so Cal/OSHA’s argumentis of marginal relevance. In any case, there is no need for a savings clause analysis regarding criminal actions in California, as the state plan expressly contemplates referral of serious cases by Cal/OSHA’s Bureau ofInvestigations to local prosecutors for criminal prosecution. (Lab. Code, § 6315, subd. (g).)° As for private causes of action, whether they are covered by the savings clause is beside the point here, because by definition such cases are brought by private parties as opposed to the state. All Solus is saying hereis that actions brought by armsofthe state to enforce workplacesafety violations can be pursued only to the extent contemplated and approvedbythestate plan. Civil penalties actions brought by local prosecutorsare not part of the state plan. To say that the savings clause can “save” an enforcement mechanism for workplace safety violations from the rigors of the OSHA approval process would be to gut the carefully-considered scheme under which states must seek plan approval-for penalty procedures as well as for substantive provisions- and then limit their enforcementactivities to those reflected in the approvedplan. ? In the other writ proceeding arising from the case below-People v. Superior Court (2014) 224 Cal.App.4th 33, 44-45 (Solus I), review denied-the Court of Appeal held that Labor Codesection 6315, subdivision (g) was not a grant of standing to district attorneysto bring civil actions, as opposed to criminal prosecutions. -15- Cal/OSHAnextrefers to the Court of Appeal’s statementthat the District Attorney’s UCL claim hereis ‘“expressly intended to penalize a party for past misconduct.” (Cal/OSHA Am.Br. at p. 17, quoting Solus Industrial Innovations, LLC v. Superior Court (2014) 229 Cal.App.4th 1291, 1308, review granted.) From this, Cal/OSHA goeson to arguethat, as a penalty statute, the UCLis akin to criminal sanctions and punitive damagesin tort actions and is therefore covered by the savings clause. (Cal/OSHA Am.Br. at pp. 17-20.) But branding a statute “penal” in nature does not save the statute from preemption. Whetherthe statute is considered penalornot,ifit is used by a state instrumentality or agency to pursue workplace safety violations, that use has to be approved by OSHA andincorporated into the state plan. Cal/OSHA also raises the specter that, if the Court of Appeal’s ruling is upheld, then California would have to seek a plan change from the Secretary of Labor “for every state law, including UCL,that may touch on workplace safety and health.” (Cal/OSHA Am.Br.at p. 26; see also id. at p. 2 [the Court of Appeal’s decision is “so broad and far-reaching it would require California to obtain an affirmative approval in the form ofa state plan change from the Secretary of Labor for every state law that may touch on occupational safety and health’’].) -16- This alarm is completely warrantless. The issue here is a narrow one: whetherlocal prosecutors can bring UCL and FAL actions to supplement Cal/OSHA’s enforcementefforts for workplace safety violations where such actionsare not part of the approved plan. The Secretary of Labor does not have to “approve” the UCL or any otherstatute that may incidentally touch on occupational safety and health. The only approval requiredis ofthe policy of permitting local prosecutors to bring UCL or FAL actionsas part ofthe official workplace safety enforcement effort. As long as there is no involvement by the district attorneys as part of the official workplace safety enforcement program,no otherstatute, regulation or common law theory will in any way be affected by the ruling Solus is asking for here. C. The Prosecutor’s Use of the UCL and FAL Has Nothing to Do with the State’s Workers Compensation System Cal/OSHAhasalso offered the peculiar argument that the UCL and the FAL escape preemption because they are being applied as part of the state’s workers’ compensation program. (Cal/OSHA Am.Br.at pp. 20-26.) The argumentis peculiar because, as Cal/OSHAeffectively admits, even the Orange County District Attorney has not argued that this case has anything to do with California’s workers’ compensation program. (Cal/OSHA Am.Br.at p. 20, fn. 29.) Of course, the complaint in this matter alleges only violations of statutes and regulations that are part of -l]7- R e g t g e e s California’s worker safety program. Given that the District Attorney has asserted only violations of the worker safety program, and not separate violations of the workers’ compensation laws, there can be no merit to Cal/OSHA’s argumentin this regard. The Court should also reject that argument because Cal/OSHAis attempting to raise an argumentthat has been foreclosed. Specifically, Cal/OSHAattempts to rely on Labor Code section 6315, subdivision (g) as authority for the district attorneys to bring civil actions to enforce the state’s worker safety program. (Cal/OSHA Am.Br.at pp. 22-25.) But that argumentis foreclosed by the Court of Appeal’s other opinionrelating to this matter. (See Solus J, supra, 224 Cal.App.4th 33.) In Solus J, the Court of Appealheld that the California Legislature did not authorize the district attorneysto file civil actions under Labor Codesections 6428 and 6429. (Id. at p. 43.) The court relied on prior decisions of this Court holding that ‘“a district attorney has no authority to prosecute civil actions absent 999specific legislative authorization.” (/d. at p. 41, quoting People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 753 & fn. 12.) As Solus I makes clear, only the California Legislature can authorize a district attorney to file an original civil action. (See Solus I, supra, 224 Cal.App.4th at p. 41.) And Solus J also establishes that the California Legislature did not authorize the district attorneys to bring civil actions to enforce the worker safety standards at issue in this case. (/d. at pp. 40-45.) -18 - This ruling is now the law ofthe case. (See People v. Stanley (1995) 10 Cal.4th 764, 786-787.) Accordingly, it is now beyond dispute that the California Legislature did not authorize the district attorneys to bring civil actions to enforce workersafety standards. In short, Cal/OSHA’s arguments regarding the “workers’ compensation laws” have no connection with the actual complaint in this matter and are further foreclosed by the decision in Solus I. If there is anything else left of Cal/OSHA’s argumentonthis point (and there does not appear to be), it is further foreclosed by the considerationsset out above-thatis, the fact that the District Attorney is attempting to use the UCL and the FAL to enforce worker safety standards in a mannernot approved by the Secretary of Labor andnotat all part of California’s worker safety plan. D. ‘The California State Plan Does Not Provide for Enforcing California’s Worker Safety Standards Through UCL Actions As noted above, Cal/OSHA offers the self-contradictory arguments (a) that the UCLis part of the California worker safety plan and(b)thatit is notpart ofthe plan. The UCLis in fact not part of California’s worker safety plan, whether approved or otherwise. The UCL doesnotitself set forth any workersafety standards. And Cal/OSHA fails to cite a single statute or regulation providing for enforcement of California’s actually existing -19- workersafety standards through UCL actions. Finally, as noted above, Solus I confirms that the California Legislature did not authorize the district attorneys to bring civil actions to enforce the worker safety standards at issue in this case. (Solus [, supra, 224 Cal.App.4th at pp. 40-45.) Rather than relying on actual statutes or regulations, Cal/OSHA argues that the UCLis part of the approved California plan because the U.S. Secretary of Labor has knownsince 1982 that Cal/OSHAis using the UCLto enforce worker safety standards. (Cal/OSHA Am.Br. at pp. 26- 28.)> But Cal/OSHA fails to explain how the Secretary of Labor can bestow on thedistrict attorneys the authority to bring civil actions when the California Legislature has not done so. (See Solus I, supra, 224 Cal.App.4th at pp. 40-45.) Nor has Cal/OSHA suggested that there is any law supporting the notion that a state plan can be implicitly amended by the Secretary of Labor’s alleged acquiescence in an enforcementpractice that is not part of the plan. Moreover, the Secretary of Labor has apparently never reached the conclusion for which Cal/OSHA argues. The applicable federal regulation still confirms that California’s plan will be enforced by Cal/OSHAthrough agency actions, notcivil actions: > The materials of which Cal/OSHArequests judicial notice fall far short of showingthat the Secretary was in fact on notice ofthe fact that local prosecutors in California occasionally bring UCL and FALactions in workplace safety cases. (Opp’n to Request for Judicial Notice of Amici Curiae Cal/OSHAat pp. 9-10.) -20- TheState's program will be enforced by the Division of Industrial Safety of the Department of 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).) And Cal/OSHAhasnot explained how to square its claim with the fact that the applicable federal regulation does not identify civil actions under the UCLas an approved enforcement tool. Presumably, had the Secretary of Labor in fact approved this approach, he or she would have amendedthe regulation at some time during the past three decades. Further, contrary to Cal/OSHA’s suggestion, the practice offiling UCL or FAL actions by local prosecutors is not part of California’s enforcement plan pending approval by the Secretary of Labor. (See Cal/OSHA Am.Br. at pp. 28-30.) Cal/OSHAhasnotcited anystatute, regulation, or other source of law showingthat the State of California has ever submitted an enforcement plan containing these elements to the Secretary of Labor for approval. Nor has Cal/OSHAcited anystatute, regulation, or other source of law showingthat, before this date, the California Legislature or any other California state entity has ever considered actions by district attorneys under the UCL or the FAL to be part of the state’s worker safety plan, whether approved or pending approval. -21- This is just an ad hoc argument advanced by Cal/OSHAtotry to coverthe plain fact that Cal/OSHA hasnever sought to amendthestate plan by including a provision that would permit local prosecutors to bring UCLand FALactions. E. Cal/OSHA HasAsked the Court to Take Judicial Notice of a Document That Confirms Solus’s Position in This Matter Cal/OSHA’s arguments are particularly startling given that Cal/OSHAhasaskedthe Court to take judicial notice of a report from Cal/OSHA’s BOI (the Cal/OSHAarm that investigates prospective criminal cases) that explicitly acknowledgesthe fact that Cal/OSHA stoutly deniesin its amicus brief- that Cal/OSHA uses UCLactions brought by prosecutors to enforce worker safety standards. (See Request for Judicial Notice of Amici Curiae California Departmentof Industrial Relations and Division of Occupational Safety and Health filed herein July 23, 2015 (“RJN”) and Ex. A thereto.) The core of Exhibit A is a BOI report dated September2, 1982, about BOI’s activities in the previous year. Anentire section of this report is devoted to explaining why BOI decided to use UCL actions brought by district attorneys as an adjunct to Cal/OSHA’s enforcement efforts. (See RJN, Ex. A at pp. 7-9.) That section expressly confirms that Cal/OSHA uses UCL actionsfiled by local prosecutors as a meansofproviding a more effective enforcement program. (RJN, Ex. A at p. 7 [heading].) Of course, it would be crystal clear even without these -22- admissionsthat the District Attorney’s UCL action against Solus was brought to enforce California’s workplace safety laws. In its brief, Cal/OSHA takes painsto argue that the UCLis not an “enforcement mechanism”for the workplace safety regulations at issue here. (Cal/OSHA Am.Br. at pp. 9-11.) Cal/OSHA makesthis argumentin tacit acknowledgmentthat, if the UCL is an enforcement mechanism for those regulations, the use of the UCL by local prosecutors in workplace safety cases would require approval at the federal level. The BOI report which Cal/OSHA asks the Court to take judicial notice of confirmsthe fact that Cal/OSHA doesindeed refer cases to local prosecutors for the filing of UCLactionsas part of Cal/OSHA’s enforcement program-even though such actions are not part of the California plan approved by the Secretary of Labor. IV. THE AMICUS BRIEF OF THE CALIFORNIA DISTRICT ATTORNEYS’ ASSOCIATION DOES NOT RAISE ANY ADDITIONAL ARGUMENTS In its amicusbrief, the CDAA raises essentially the same arguments offered by the Orange County District Attorney and Cal/OSHA. None of the CDAA’s arguments has any merit. A. The OSH Act Is Not a “Law of General Applicability” The CDAA arguesfirst that the UCL is a “law of general applicability” and thus not subject to preemption under the OSH Act. (Application for Request to File Amicus Curiae Brief and Amicus Curiae -23- Brief in Support of Real Parties in Interest the People of the State of California (““CDAA Am.Br.”) at pp. 14-20.) That argumentfails for the same reasons that Cal/OSHA’s argument on the same point fails. As shown in Part III.A above, a plaintiff cannot invoke a general statute like the UCL or the FAL,call it a “law of general applicability,” and then argue that he can bring a preempted claim- whetherarising out of copyright law, patent law or some other federal statutory framework that serves to preempt state claims-underthe guise of the state statute. The Supremacy Clause barsthis result. As also shown above, under Gade, a court must consider the “practical impact”ofthe state statute in making the preemption analysis. Here, the District Attorney’s complaint under the UCL and the FALis based exclusively on alleged breaches of the workplace safety regulations that Cal/OSHA hasthe authority to enforce. The “practical impact” of UCL and FALcivil penalties actions broughtby district attorneysis clearly in aid of enforcement ofthe state worker safety program. In this regard, the CDAA,like the District Attorney and Cal/OSHA, continually fails to grapple with the Supreme Court’s explanation that the OSH Act preemptsa state law if that law “interferes with the methods by which the federal statute was designedto reach thf{at] goal.’ [Citation.]” (Gade, supra, 505 U.S.at p. 103, italics added; see also id. at p. 101 [““States are not permitted to assume an enforcement role without the ~ 24 - Secretary’s approval ....”].) Here, the State, acting through the Orange County District Attorney, is using a state law that “interferes with the methods by whichthe federal statute was designed to reach [its] goal”- that is, the method of administrative enforcement through agencyaction. B. The OSH Act’s Savings Clause Does Not Apply The CDAAreiterates much of Cal/OSHA’s argument regarding the OSH Act’s savings clause. (CDAA Am.Br.at pp. 20-21.) That argument fails for the same reasons that Cal/OSHA’s argumentfailed. First, like Cal/OSHA, the CDAA undercuts any argument about the applicability of the savings clause by the wayit characterizes the UCL. As regards statutes, the savings clause applies only to statutory rights, duties andliabilities of employers and employees under any law with respect to injuries, diseases or death of the employee arising out of employment. (29 U.S.C. § 653(b)(4).) But the CDAA saysinits brief that the UCL “is not an ‘occupational safety and health’ law at all.” (CDAA Am.Br.at p. 14.) Weare further told that the UCL claim in this case “is not an occupational health and safety standard or an attempt to enforce one.” (CDAA Am.Br. at p. 19.) So if the UCL has nothing to do with workplace safety, how can it be “saved”by a clause limited to statutes that have a workplace safety nexus? Beyondthis, the “practical impact” of licensing local prosecutors to file UCL and FAL actions in workplace safety cases would be to enforce -25- California’s worker safety plan. But permission to establish or implement such a program hasnever been sought from, or obtained by, the U.S. Secretary of Labor. Nor has the California Legislature weighedin on this approach. This is simply an ad hocrationalization for an informal meansof enforcement. If the State of California wants to use this means of enforcing its workplace safety regulations, then it should formally enactthe statutes and adopt the regulations necessary to do so-andit should seek the Secretary of Labor’s approvalofthis approach,just as it did in regard to Proposition 65. (See California Lab. Federation v. Cal/OSHA (1990) 221 Cal.App.3d 1547, 1558-1559; 62 Fed.Reg. 31159 (June 6, 1997) [Secretary of Labor’s actions in reviewing and in approving in part Proposition 65].) C. The OSH Act Preempts Local Prosecutors’ Use of the UCLand the FAL Because They Are Enforcing Worker Safety Standards in a MannerInconsistent with the Act The CDAA also makes a somewhat unclear argument that the UCL is not preempted by the OSH Act “because the Secretary of Labor does not have the authority to promulgate unfair competition or consumerprotection laws.” (CDAA Am.Br. at p. 22.) But the complaintat issue contains no allegations of unfair competition or consumer protection. Thus, as explained above,the “practical impact” of permitting local prosecutors to bring UCL and FAL actionsis necessarily to enforce worker safety standards. - 26 - The CDAAmayalsobe claiming that no federal standards track the underlying state worker safety standards involvedin this case and therefore there is no federal standard that can preempt the state standards involved here. (See CDAA Am.Br.at p. 22.) The Orange County District Attorney has neverraised that argument. In any event, the argumentis meritless. “[W]hen OSHA promulgates a federal standard, that standard totally occupies the field within the ‘issue’ of that regulation and preemptsall state occupational safety and health lawsrelating to that issue, conflicting ornot, unless they are includedin the state plan.” (ndustrial Truck Assn. v Henry (9th Cir. 1997) 125 F.3d 1305, 1311.) Here, numerous federal regulations relate to the issues addressed bythe state standards. (See, e.g., 29 C.F.R. § 1910.147 [control of hazardous energy, including steam energy]; 29 C.F.R. § 1910, subpart H, Hazardous Materials, and subpart M, Compressed Gas and Compressed Air Equipment[water heater as a pressure vessel].) Moreimportant, the CDAA ignoresthe central issue: that the Orange County District Attorney is using a means of enforcing the California worker safety plan that is not part of that plan and has never been submitted to or approved by the Secretary of Labor. D. Recognition of Federal Preemption in This Instance Would Have No Effect on State Laws That Truly Are “Generally Applicable” The CDAAcloses its argument by asserting that recognition of preemptionin this case will “result in the preemption of common law and -27- statutory torts, as well as criminal laws, even if they are generally applicable laws, unless they are included in an approvedstate plan.” (CDAA Am.Br. at p. 23.) Indeed, according to the CDAA,if the Court of Appeal’s ruling is upheld, “Workplaces will become the Wild West, unless each and every state law [touching on workplace safety] is included in the state plan and approved bythe Secretary.” (/bid.) This fear is unfounded. As previously shown (Part III.B above), Solus’ only concern is the use by local prosecutors of the UCL and the FAL to supplement Cal/OSHA’s enforcement efforts where such use has never been approvedat the federal level. No one is contending that a range of other laws that may touch on workplace safety need to be part of the plan. Indeed, unless district attorneys plan on invoking someotherstatute to enforce alleged workplace safety violations (and there is no indication that the district attorneys have any such plan), the Court of Appeal’s ruling will not affect a single other statute-or, for that matter, any common law theory of recovery. In this same section, the CDAA-likethe District Attorney and Cal/OSHA-effectively admits that application of the UCL and the FAL in this context enforces worker safety standards. Specifically, the CDAA arguesthat “the deterrent effect ofUCL penaltiesis entirely consistent with the OSH Act’s goal of protecting employees. . . . [B]y providing punitive - 28 - penalties, the UCLfills a much neededgapin the state and federal regulations.” (CDAA Am.Br. at pp. 26-27.) CDAA’s argumenthelps confirm the point made by Solus throughoutthis litigation: the Orange County District Attorney is using the UCL and FAL to enforce worker safety standards. This point would be obvious anyway, since it is abundantly clear that the underlying action, based exclusively on an alleged violation of worker safety standards and seeking penalties for those alleged violations, is workplace safety enforcementplain and simple. But enforcementactions by local prosecutors under the UCL and the FAL arenotpart of California’s worker safety program, and that program doesnotprovide for enforcement by local prosecutors through original civil actions filed in the superior courts. The District Attorney, the CDAA, and Cal/OSHA mayberight that enforcement of the state’s worker safety standards through UCL actions would promote some of Congress’ interests in enacting the OSH Act. But it is not enough that the UCL and the FAL might promote someofthe same goals of the federal law: Wecannot acceptpetitioner's argumentthat the OSH Act does not pre-empt nonconflicting state laws becausethose laws, like the Act, are designed to promote workersafety. In determining whetherstate law “stands as an obstacle” to the full implementation of a federal law [citation], “it is not enough to say that the ultimate goal of both federal and state law"is the same[citation]. “A state law also is pre- -29- emptedif it interferes with the methods by whichthe federal statute was designed to reach th[at] goal.” [Citations.] The OSH Act does not foreclose a State from enacting its own laws to advance the goal of workersafety, but it does restrict the ways in whichit can do so. (Gade, supra, 505 U.S. at p. 103.) Thus,it is irrelevant that the District Attorney’s use of the UCL might help achieve someofthe goals of the OSH Act. Evenifthatis true, the District Attorney’s approach “interferes with the methods by which the federal statute was designedto reach th[at] goal.” (Gade, supra, 505 U.S. at p. 103.) It does so by providing for enforcementin a waythatis not part of the state plan and that was not approvedbythe Secretary of Labor. Further, this use of the UCL and FAL would result in duplicative regulation of workplaces, thus contradicting part of Congress’ purpose in enacting the statute: ““The OSH Act as a whole evidences Congress’ intent to avoid subjecting workers and employers to duplicative regulation ... .” (Gade, supra, 505 U.S.at p. 100, italics added.) Because this application of the UCL and the FAL would subject both workers and employers to duplicative regulation,it is preempted by the OSH Act. -30- V. CONCLUSION Neither Cal/OSHA nor the CDAA provides any reasonto reverse the considered opinion of the Court of Appeal. The “practical impact” (Gade, supra, 505 U.S. at p. 106) of the District Attorney’s use of the UCL andthe FALis to provide for a second round of enforcement of workersafety standards in a way that was not approvedbythe U.S. Secretary of Labor. The Court should therefore conclude that the use by local prosecutors of the UCL and the FAL as an enforcement mechanism for workplace safety laws is preempted. Dated: August 24, 2015 Respectfully submitted, JONES DAY Counselfor Petitioners SOLUS INDUSTRIAL INNOVATIONS, LLC,etal. -31- CERTIFICATE OF WORD COUNT Counselof Record hereby certifies, pursuant to Rule 8.504(d) of the California Rules of Court, that the foregoing brief was producedusing 13- point type, including footnotes, and contains 7,194 words. Counselrelies on the word count of the computer program used to preparethis brief. Dated: August 24, 2015 Respectfully submitted, JONES DAY » Can Oh~ Frederick D. Friedman Counselfor Respondents SOLUS INDUSTRIAL INNOVATIONS,LLC,et al. NAI-1500500399 -32- PROOF OF SERVICE BY MAIL Iam citizen of the United States and employed in Los Angeles County, California. I am overthe age of eighteen years and not 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 correspondencefor mailing with the United States Postal Service. On August 24, 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): COMBINED RESPONSETO BRIEFS OF AMICI CURIAE CALIFORNIA DEPARTMENTOF INDUSTRIAL RELATIONS AND DIVISION OF OCCUPATIONAL SAFETY AND HEALTH AND CALIFORNIA DISTRICT ATTORNEYSASSOCIATION, addressed as follows: SEE ATTACHED SERVICE LIST Following ordinary business practices, the envelope wassealed 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 on this date. I declare under penalty of perjury under the lawsofthe State of California that the aboveis true andcorrect. Executed on August 24, 2015, at Los Angeles, California. e Moicug Jennifer Gutierrez 0 NAI-383187621v1 SERVICE LIST California Court of Appeal Fourth Appellate District, Division 3 601 W. Santa Ana Blvd. Santa Ana, CA 92701 Hon. Kim G. Dunning c/o Clerk of the Court The Superior Court of Orange 751 West Santa Ana Blvd. Santa Ana, CA 92701 Office of the Attorney General Other Appellate Coordinator 300 South Spring Street Los Angeles, CA 90013 Kelly A. Roosevelt, Esq. Deputy District Attorney P.O. Box 808 Santa Ana, CA 92702 SuzannePatricia Marria,Esq. Christopher Gary Jagard, Esq. State of California Department of Industrial Relations Division of Occupational Safety & Health 1515 Clay Street, Suite 1901 Oakland, California 94612 Amy Denice Martin, Esq. Department of Industrial Relations Division of Workers Compensation 1515 Clay Street, 18" Floor Oakland, CA 94612 Mark Louis Zahner, Esq. California District Attorney Association 921 11" Street, Suite 300 Sacramento, CA 95814 NAI-383187621v1 Counsel for Real Parties in Interest, People ofthe State of California State of California Department of Industrial Relations, Division of Occupational Safety and Health Amicus Curiae State of California Departmentof Industrial Relations, Division of Occupational Safety and Health Amicus Curiae California District Attorneys Association Amicus Curiae Luke A. Wake, Esq. NFIB Small Business Legal Center 92111" Street, Suite 400 Sacramento, CA 95814 Damien M.Schiff,Esq. Alston & Bird LLP 1115 11" Street Sacramento, CA 95814 Patrick Joseph Gregory, Esq. Shook, Hardy & Bacon LLP 1 Montgomery St Ste 2700 San Francisco, CA 94104 Phil Goldberg, Esq. Cary Silverman, Esq. Shook, Hardy & Bacon LLP 1155 F Street Northwest, Suite 200 Washington, D.C. NAI-383187621v1 The National Federation of Independent Business Small Business Legal Center Amicus Curiae The National Federation of Independent Business Small Business Legal Center Amicus Curiae National Association of Manufacturers Amicus Curiae National Association of Manufacturers Amicus Curiae