Filed 8/24/26 Waterproofing and Roofing etc. v. Cal. OSHA Appeals Bd. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
WATERPROOFING AND B350373 ROOFING SOLUTIONS, INC., (Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 24STCP03693)
v.
CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD,
Defendant and Respondent;
CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH,
Real Party in Interest and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis A. Kin, Judge. Affirmed.
Ogletree, Deakins, Nash, Smoak & Sewart, Kevin D.
Bland, Nicole A. Naleway and Sandra Aguilar for Plaintiff and Appellant.
Aaron R. Jackson, J. Jeffrey Mojcher, Karen E. Halbo and Brian T. Nichols for Defendant and Respondent.
Danielle A. Lucido, Chief Counsel, Rocio Y. Reyes-Garcia, Assistant Chief Counsel, and Ramesses S. Surban, Staff Counsel, for Real Party in Interest and Respondent.
_______________________________
Waterproofing and Roofing Solutions, Inc. (Employer), appeals from a judgment denying its petition for a writ of administrative mandamus under Code of Civil Procedure section 1094.5. Employer filed untimely administrative appeals from citations issued by Real Party in Interest and Respondent, the California Department of Industrial Relations, Division of Occupational Safety and Health (the Division). A hearing officer denied Employer’s motion for leave to submit late appeals. Defendant and Respondent, California Occupational Safety and Health Appeals Board (the Board), denied Employer’s petition for reconsideration of the hearing officer’s decision.1
1 “[T]he Division has primary responsibility for
administering and enforcing Cal-OSHA [the California Occupational Safety and Health Act of 1973 (Lab. Code, § 6300 et seq.)]. [Citation.] The Board is an independent adjudicatory agency that resolves appeals from Division-issued citations under Cal-OSHA.” (United Assn. Local Union 246, AFL-CIO v. Occupational Safety & Health Appeals Bd. (2011) 199 Cal.App.4th 273, 276.)
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Employer petitioned the trial court for a writ of administrative mandate to set aside the Board’s decision. The trial court denied the petition and entered judgment. Sixty-one days after the clerk of the superior court served the parties with notice of entry of judgment, Employer filed a notice of appeal from the judgment.
Pursuant to Government Code section 68081, we requested supplemental briefs from the parties addressing whether Employer’s notice of appeal was timely. In response, Employer moved to augment the record with documents indicating that 59 days after notice of entry of judgment, Employer, through a court-filing service provider, electronically submitted the notice of appeal to the superior court clerk for filing within a single electronic file that began, on the first several pages, with a civil case information statement. The clerk rejected that initial, timely filing for the stated reason that a civil case information statement must be filed in the Court of Appeal, without addressing the notice of appeal on a subsequent page of the filing.
For reasons we will explain, we grant Employer’s motion to augment the record and deem the notice of appeal to have been timely filed when Employer first submitted the notice to the superior court clerk for filing. On the merits, we conclude Employer fails to show that the Board erred by denying Employer’s petition for reconsideration. Accordingly, we affirm the trial court’s judgment denying Employer’s petition for a writ of mandate to set aside the Board’s decision.
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BACKGROUND
In January 2024, the Division served Employer with two citations. Nearly four months later, Employer filed untimely appeals from the citations to the Board.2 After the Board notified Employer that its appeals were untimely, Employer moved for leave to file late appeals. A hearing officer denied the motion, finding that Employer failed to show good cause.
Employer filed an unverified petition for reconsideration of the hearing officer’s decision. On September 5, 2024, the Board served Employer with a letter noting that Employer failed to verify the petition as Labor Code section 6616 required and directing Employer to correct that deficiency by submitting a signed verification to the Board within five days after service of the letter.3 The Board’s letter stated: “IMPORTANT: Further
2 “Any employer served with a citation . . . may appeal to
the appeals board within 15 working days from the receipt of such citation . . . .” (Lab. Code, § 6600; see also id., § 6601; Cal. Code Regs., tit. 8, § 359, subd. (d).) “The time for filing any appeal may be extended or a late filing permitted upon a written showing of good cause that contains sufficient facts to show or establish a reasonable basis for the late filing.” (Cal. Code Regs., tit. 8, § 359, subd. (d); see also Lab. Code, § 6601.)
3 “The petition for reconsideration [of a hearing officer’s
decision] . . . shall be verified upon oath in the manner required for verified pleadings in courts of record . . . .” (Lab. Code, § 6616; see also Cal. Code Regs., tit. 8, § 390, subd. (c).) “A petition that is not properly verified upon oath . . . shall be considered [properly] filed . . . if the petitioner perfects the
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action cannot be taken until the Board receives a verification . . . of the petition for reconsideration. The verification must be served upon the Appeals Board . . . no later than five days from the date of this letter. Failure to do so may result in the dismissal/denial of the petition for reconsideration.” (Boldface omitted.)
More than one month later, having received no verification, the Board denied Employer’s petition for reconsideration. The Board found that Employer failed to show good cause to allow its late appeals. Further, the Board concluded that Employer’s failure to verify the petition was “another ground upon which to deny the Petition.” The Board explained: “Labor Code se[c]tion 6616’s verification requirement is stated in mandatory terms. (Lab. Code § 15, provides [‘]shall[’] is mandatory.) We have held several times that failure to verify a petition is grounds for denying it. (Natural Pack, Inc., [(Cal. O.S.H.A., Aug. 22, 2022, No. 1410194) 2022 CA OSHA App. Bd. Lexis 27].)[4] The failure to verify a pleading when doing so is required is curable by amendment. [Citation.] However, Employer’s counsel has not taken advantage of the
petition by filing the verification . . . within five days of the date of service of a letter from the Appeals Board noting the omission(s).” (Cal. Code Regs., tit. 8, § 391.1, subd. (b).) “Failure to perfect a petition in accordance with subsection (b) shall result in the dismissal of the petition.” (Id., subd. (c).)
4 We grant the Board’s request for judicial notice of
Natural Pack and other Board decisions. (See United Assn. Local Union 246, AFL-CIO v. Occupational Safety & Health Appeals Bd., supra, 199 Cal.App.4th at p. 279, fn. 5.)
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notice of deficiency the Board provided on September 5, 2024, and thus the deficiency remains uncured.”
Employer petitioned the trial court for a writ of administrative mandate to set aside the Board’s decision.5 Employer’s petition and supporting brief did not address the Board’s reliance on Employer’s failure to verify its petition for reconsideration.
After a trial on the administrative record, the trial court denied Employer’s petition for a writ of mandate. The court concluded substantial evidence supported the Board’s finding that Employer failed to show good cause to allow its late appeals. The court further concluded that by failing to address the Board’s reliance on Employer’s failure to verify its petition for reconsideration, Employer “waived any challenge” to that “separate and independent basis for denial of the Petition for Reconsideration.”
The trial court entered judgment denying the petition for a writ of mandate. On August 15, 2025, the clerk of the superior court served the parties with notice of entry of the judgment.
5 “Any person affected by an order or decision of the
appeals board may . . . apply to the superior court . . . for a writ of mandate . . . .” (Lab. Code, § 6627.) “The review by the court shall not be extended further than to determine, based upon the entire record which shall be certified by the appeals board, whether: [¶] (a) The appeals board acted without or in excess of its powers. [¶] (b) The order or decision was procured by fraud. [¶] (c) The order or decision was unreasonable. [¶] (d) The order or decision was not supported by substantial evidence. [¶] (e) If findings of fact are made, such findings of fact support the order or decision under review.” (Id., § 6629.)
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The clerk’s transcript indicates that 61 days later (on October 15, 2025), Employer filed a notice of appeal from the judgment.
DISCUSSION
A. We deem Employer’s notice of appeal timely.
Generally, “a notice of appeal must be filed on or before the earliest of: [¶] . . . 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, showing the date either was served . . . .” (Cal. Rules of Court, rule 8.104(a)(1)(A); see also Hughes v. City of Pomona (1998) 63 Cal.App.4th 772, 775-777; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2025) ¶¶ 3:37-3:38.2, pp. 20-21.)
Here, as noted, the clerk’s transcript indicates that Employer filed its notice of appeal from the judgment 61 days after the clerk of the superior court served the parties with notice of entry of judgment. On the face of the transcript alone, the notice of appeal appears untimely. (See Cal. Rules of Court, rule 8.104(a)(1)(A).)
In response to our request for supplemental briefing regarding the timeliness of the appeal, Employer moves to augment the record with documents indicating that Employer first submitted the notice of appeal to the superior court clerk for filing 59 days after notice of entry of judgment, and argues that we should deem the notice of appeal timely based on those documents. To consider all relevant facts pertaining to our jurisdiction, we grant the motion to augment the record. (See Lezama-Carino v. Miller (2007) 149 Cal.App.4th 55, 58 (Lezama- Carino) [“The alleged delay by the trial court between receipt [of
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the notice of appeal] and filing [thereof] is not evident from the record on appeal. Therefore, in the interest of fairness, this court has ordered the record augmented with additional evidence relating to the date the notice of appeal was presented to the trial court for filing”].)
As augmented, the record shows the following additional facts: On October 13, 2025 (59 days after notice of entry of judgment), on Employer’s behalf, a court-filing service provider electronically submitted the notice of appeal to the superior court clerk within a single electronic file that began, on the first several pages, with a civil case information statement.6 On October 15, 2025 (61 days after notice of entry of judgment), the clerk notified Employer that the clerk rejected the filing because a civil case information statement “must be file[d] with [the] Court of Appeal.” (Some capitalization omitted.) The same day, on Employer’s instructions, the provider resubmitted the notice of appeal, which the clerk filed.
Under the Rules of Court applicable to appeals from superior courts, “[a] document is deemed filed on the date the clerk receives it.” (Cal. Rules of Court, rule 8.25(b); see also id., rule 8.4(1).) Here, the clerk first received the notice of appeal on October 13, 2025. The clerk’s stated reason for rejecting the electronic submission for filing—i.e., that a civil case information statement must be filed in the Court of Appeal, not in the superior court—did not warrant rejection of the notice of appeal.
6 Employer had instructed the provider to file both the
notice of appeal and the civil case information statement, but had not expressly instructed the provider to file the civil case information statement in the superior court or in a single electronic file also containing the notice of appeal.
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(Id., rule 8.100(a)(1) [appellant must file notice of appeal from superior court judgment in superior court]; see also Lezama- Carino, supra, 149 Cal.App.4th at p. 59 [“the only basis [for a superior court clerk] to refuse to file a document which has a jurisdictional deadline is where the proposed document fails to comply with California Rules of Court, rule 2.100 et seq.”].)
The clerk’s rejection notice did not state any separate reason for rejecting the notice of appeal. That omission suggests the clerk overlooked the notice of appeal’s presence within the electronic file. (See Cal. Rules of Court, rule 2.259(b) [“If the clerk does not file a document because it does not comply with applicable filing requirements or because the required filing fee has not been paid, . . . [t]he notice [of rejection] must state the reasons that the document was rejected for filing”].)
It appears the clerk overlooked the notice of appeal because Employer’s service provider combined the notice in a single electronic file with a preceding civil case information statement. We conclude the submission’s poor formatting did not nullify the timely submission of the notice of appeal so as to deprive us of jurisdiction. (See Lazar v. Bishop (2024) 107 Cal.App.5th 668, 676 [deeming notice of appeal to have been timely filed when appellant first electronically submitted it for filing, even though clerk rejected filing “because of counsel’s failure to use the proper category in the dropdown menu for the electronic filing”].) As in Lazar, Employer “promptly refiled the notice of appeal the same day counsel received the superior court’s rejection of the original filing.” (Ibid.)
For the foregoing reasons, we deem the notice of appeal to have been timely filed on October 13, 2025, when Employer first submitted the notice to the superior court clerk for filing.
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B. Employer fails to show the Board erred by denying Employer’s petition for reconsideration. “ ‘Our function on appeal is the same as that of the trial court in ruling on the petition for the writ [of mandate]. We must determine whether based on the entire record the Board’s decision is supported by substantial evidence and whether it is reasonable. [Citations.] Where the decision involves the interpretation and application of existing regulations, we must determine whether the administrative agency applied the proper legal standard.’ ” (Rick’s Elec., Inc. v. California Occupational Safety and Health Appeals Bd. (2000) 80 Cal.App.4th 1023, 1033.)
Employer challenges the Board’s decision to deny Employer’s petition for reconsideration of the hearing officer’s decision that had denied Employer’s motion for leave to file its late appeals. Employer argues the Board applied an erroneous legal standard in finding that Employer failed to show good cause to allow the late appeals.
We need not address that argument, because even assuming, arguendo, the Board applied an erroneous good cause standard, Employer fails to show error in the Board’s alternative reason for denying Employer’s petition for reconsideration, i.e., that Employer failed to verify the petition as Labor Code section 6616 required. That statute provides: “The petition for reconsideration . . . shall be verified upon oath in the manner required for verified pleadings in courts of record . . . .” (Ibid.)
The Board concluded that the statute’s verification requirement is mandatory and that Employer’s failure to verify its petition for reconsideration—even after the Board notified Employer that failure to do so might result in the petition’s
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denial—was an independent ground to deny the petition. In denying Employer’s subsequent petition for a writ of mandate to set aside the Board’s decision, the trial court concluded that because Employer did not address the Board’s reliance on Employer’s failure to verify its petition for reconsideration, Employer “waived any challenge” to that “separate and independent basis for denial of the Petition for Reconsideration.”
On appeal, Employer’s opening brief still does not address the Board’s reliance on Employer’s failure to verify the petition for reconsideration. In the Board’s respondent’s brief (in which the Division has joined), the Board argues that its reliance on the lack of verification was proper and that Employer waived the issue. Employer’s reply brief argues, for the first time, the Board erred by denying the petition for lack of verification.
We conclude Employer forfeited that argument. “New arguments may not be raised for the first time in an appellant’s reply brief.” (High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 111, fn. 2.) “ ‘ “Obvious considerations of fairness in argument demand that the appellant present all of [the appellant’s] points in the opening brief. To withhold a point until the closing brief would deprive the respondent of [an] opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” ’ ” (Ibid.)
Employer argues that its reply brief preserved the new argument because Employer need not have “anticipate[d] Respondent’s reliance on the verification issue,” which issue Employer characterizes as an “alternative ground[] for
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affirmance raised for the first time in the respondent’s brief.” As noted, however, the Board and the trial court expressly relied on the verification issue in denying Employer’s petition for reconsideration and subsequent petition for a writ of mandate. By failing to address that issue in its opening brief, Employer failed to meet its burden to affirmatively show error in the judgment. (See Fleming Distribution Co. v. Younan (2020) 49 Cal.App.5th 73, 84, fn. 8 [“it is the appellant’s burden to affirmatively demonstrate error with respect to all of the bases upon which the trial court rendered its decision [citation], regardless of whether the respondent has provided argument or authority in support of the trial court’s decision”].)
Even assuming, arguendo, Employer preserved the issue, Employer fails to show error. Because Employer failed to timely verify its petition for reconsideration even after the Board served Employer with a letter noting the omission, Cal-OSHA regulations required the Board to dismiss the petition. “A petition that is not properly verified upon oath . . . shall be considered [properly] filed . . . if the petitioner perfects the petition by filing the verification . . . within five days of the date of service of a letter from the Appeals Board noting the omission(s).” (Cal. Code Regs., tit. 8, § 391.1, subd. (b).) “Failure to perfect a petition in accordance with subsection (b) shall result in the dismissal of the petition.” (Id., subd. (c), italics added; see also Solaris Paper, Inc. (Cal. O.S.H.A., May 6, 2010, No. 09-R3D6-2156) 2010 CA OSHA App. Bd. Lexis 58, at p. *3 [“The Board may not consider an unverified petition”].)
Employer does not address those regulations. Nor does Employer cite any authority addressing Labor Code section 6616. Instead, without citing authority, Employer argues the
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Board erred because: (1) the absence of verification was curable, as the Board demonstrated by giving Employer an opportunity to cure the defect; (2) the defect was procedural, not jurisdictional; and (3) the defect did not prejudice the Board.
The regulations, however, require the Board to dismiss a petition for reconsideration where, as here, the Board provided the petitioner an opportunity to cure the absence of verification and the petitioner did not avail itself of that opportunity. (Cal. Code Regs., tit. 8, § 391.1, subds. (b)-(c).) Whether the defect was jurisdictional or procedural is immaterial to our determination whether the Board erred by relying on the defect as a reason to deny the petition. (See The Pepboys—Manny, Moe and Jack of California (Cal. O.S.H.A., Nov. 30, 2009, No. 09- R3D1-1732) 2009 CA OSHA App. Bd. Lexis 141, at p. *4 [absence of verification, among other “procedural deficiencies,” required Board to deny petition for reconsideration].) Finally, the regulations do not condition a petition’s dismissal for lack of verification on a showing of prejudice.
In short, we conclude Employer fails to show the Board erred by denying Employer’s petition for reconsideration. Accordingly, we affirm the trial court’s judgment denying Employer’s petition for a writ of mandate to set aside the Board’s decision.
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DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.