On June 23, 2014, an inspector from Division of Occupational Safety and Health (DOSH) conducted an inspection of a job site in Oakland at which Raam Construction, Inc. served as general building contractor. Following this inspection, DOSH cited Raam as a “controlling employer” for a safety violation.
Raam thereafter contested this citation before an administrative law judge (ALJ) of the Appeals Board. (§ 6319.)
After the ALJ issued a decision upholding the citation, Raam filed a timely petition for reconsideration with the Appeals Board. On March 4, 2016, the Appeals Board issued a decision denying Raam’s petition for reconsideration. On the same day (March 4), the Appeals Board filed this decision and served a copy on Raam via first class mail.
On April 8, 2016, 35 days after the Appeals Board’s denial was issued, filed and served, Raam filed a petition for writ of mandate with the Alameda County Superior Court. Both the Appeals Board and DOSH, as real party in interest, challenged Raam’s petition for writ of mandate on untimeliness grounds, the former by motion to dismiss and the latter by demurrer. After a contested hearing presided over by Commissioner Thomas Rasch, the demurrer was sustained and the motion to dismiss granted, without leave to amend. The Court of Appeal affirmed the dismissal in the unpublished case of Raam Construction v. Occupational Safety and Health Appeals Board.
Section 6627 states in relevant part: “Any person affected by an order or decision of the appeals board may, within the time limit specified in this section, apply to the superior court of the county in which he resides, for a writ of mandate, for the purpose of inquiring into and determining the lawfulness of the original order or decision or of the order or decision following reconsideration. The application for writ of mandate must be made within 30 days after a petition for reconsideration is denied, or, if a petition is granted or reconsideration is had on the appeals board’s own motion, within 30 days after the filing of the order or decision following reconsideration.” (Italics added.)
“The California Supreme Court has interpreted another Labor Code provision that is in all significant respects identical to section 6627. In Camper v. Workers’ Comp. Appeals Bd. (1992) 3 Cal.4th 679 (Camper), the high court was asked to interpret section 5950, the statute governing the time limits for an aggrieved party to file a petition for review of a Workers’ Compensation Appeals Board decision before the Supreme Court or an appellate court. It concluding section 5950 is clear on its face that the filing of the Appeals Board’s decision is what triggers the running of the limitations period: “The 45-day time period specified in section 5950 runs from the time ‘a petition for review is denied’ or from the ‘filing of [a]n order, decision, or award following reconsideration.’ (Lab. Code, § 5950, italics added.) There is no reference in this statute to service. The operative trigger of the time period set forth in section 5950 is the filing of the order.