Filed 8/24/26 Waterproofing and Roofing etc. v. Cal. OSHA Appeals Bd. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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.)
2
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.
3
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
4
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.)
5
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.)
6
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
7
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.
8
(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.
9
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
10
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
11
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
12
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.
13
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.
14